79 S.E. 297 | N.C. | 1913
The defendant was recognized by a justice of the peace to appear at the next term of the Superior Court. In lieu of bond, a certified check for $200 was deposited by his surety, the Old Dominion Distributing *327 Company. The defendant appeared before the Superior Court and pleaded guilty. The judge did not immediately dispose of the case, but a day or two later the defendant was called for the purpose of being sentenced, when it appeared that he had left the court and the State. Judgment nisi was entered, and sci. fa. issued against the defendant and the Southern Distributing Company. (409)
Upon the return of the sci. fa. the Old Dominion Distributing Company, the surety, filed a petition, on which appears the following: "Special appearance on part of surety." The petition sets out the facts fully and says, among other things:
"5th. Your petitioner is informed and believes, and so avers, that his Honor, Judge Webb, did not impose sentence at the time of the plea or during said day, though the defendant was in court, but permitted said matter to remain undisposed of until Wednesday or Thursday of said court, when the defendant left the court and returned to his home in Virginia without the sentence of the court having been pronounced against him, as should have been done.
"6th. Your petitioner is informed and believes that after said defendant had been permitted by the court to remain in and at the bar for so long a time without having pronounced sentence against him, and after defendant having left the court, as before set out, and his said bail declared forfeited.
"7th. Your petitioner is informed and believes that when said defendant came into court, waived bill of indictment and entered a plea of guilty, and by so doing he put himself in custody, and said waiver and plea were accepted by the court, he by said acts complied with the law and the terms and conditions of the said bail, and said bail was thereby discharged.
Wherefore your petitioner prays the court:
"1st. That the former order of forfeiture be reversed by this court.
"2d. That said bail be discharged and the deposit heretofore made by your petitioner be returned to him."
The case on appeal states that the surety entered an appearance.
Judgment was rendered condemning the deposit, and the surety excepted and appealed.
A recognizance is a debt of record acknowledged before a court of competent jurisdiction, with condition to do some particular act. S. v. Smith,
It need not be executed by the parties, but is simply acknowledged by them, and a minute of the acknowledgment is entered by the court. S. v.Edney,
It binds the defendant to three things:
(1) To appear and answer either to a specified charge or to such matters as may be objected to.
(2) To stand and abide the judgment of the court.
(3) Not to depart without leave of the court. S. v. Schenck,
It follows, therefore, upon these well settled principles, that the judgment nisi is regular and valid, as the defendant and his surety entered into the recognizance, and the defendant departed without leave of the court.
The surety contends, however, that no final judgment can, in any event, be entered condemning the deposit, because it entered a special appearance, and it has not been served with process.
The answer to this position is twofold. In the first place, the case states that the surety entered an appearance, which, nothing else appearing, would mean a general appearance, and would be a waiver of the service of process; and in the next place, if the appearance had been entered special, it was in legal effect general, because the motion of the surety affected the merits. Scott v. Life Association,
It is said in Grant v. Grant,
We are, therefore, of opinion there is no error.
Affirmed.
Cited: Comrs. v. Scales,
