11 S.E.2d 294 | N.C. | 1940
Proceeding on appearance bond.
One Wadis Brown having been arrested on a charge of reckless driving, on 17 August, 1937, executed his appearance bond returnable to the September Term, 1939, Rowan Superior Court, with the respondent as surety thereon. The case was called for trial at the February Term, 1940, at which time the defendant entered a plea to an offense less than that charged in the warrant and judgment was suspended upon condition that the defendant pay the cost. The defendant was given by the *369
court until Monday of the second week in which to pay the cost. On Monday of the second week the defendant was duly called and failed to answer. Thereupon, judgment nisi was entered and sci. fa. and capias was ordered. The sci. fa. was served upon the surety but not upon the principal. The surety, in response to the sci. fa. served, appeared and answered. When the matter was heard upon the return of the sci. fa. after consideration of respondent's answer, judgment absolute was entered. Respondent excepted and appealed.
The appellant contends that it was error for the court to enter judgment absolute on the sci. fa. until such sci. fa. had been served on the principal and that, therefore, the judgment pronounced is voidable and unenforceable. The question thus sought to be presented is decided by this Court in Bond Co. v. Krider, ante, 361. The decision in that case is controlling. As the defendant Brown was permitted to remain at large under the bond until the second Monday of the court, his failure to appear constitutes a forfeiture thereof. S. v. Staley,
Affirmed.
