Lead Opinion

On the 21st day of May, A.D. 1925, a bond was filed in the Criminal Court of Record of Polk County, conditioned for the appearance of Frank B. Lowther to be and appear at the July term of said court, to answer the charge of larceny of an automobile. The bond was signed by the plaintiffs in error as surety, but was never executed by the principal. Thereafter, upon the failure of Frank B. Lowther to appear and answer the above charge and the failure of the plaintiffs in error, sureties on said bond, to produce Frank B. Lowther in court, the said bond was estreated and proceedings were had in the Circuit Court of Polk County, which resulted in the entry of a final judgment on the 11th day of October, A.D. 1927, against the plaintiffs in error.

Writ of error was taken and the same is here for consideration by the Court. There are two assignments of error; the only contention being that the bond is void because the principal did not sign or execute the same.

Having undertaken for the faithful appearance of the accused for trial the sureties are not in a position to avail themselves of any formal defect in the bond which applies to any other party thereto and not to themselves, and the failure of a principal to sign the bail bond does not affect the liability of the sureties. State v. Bradsher, 189 N.C. 401, 127 So. E. R. 349, 38 A. L. R. 1102.

Affirmed.

Addendum

The record in this cause having been considered by the Court, and the foregoing opinion prepared under Chapter 14553, Acts of 1929, adopted by the Court as its opinion, it is considered, ordered and adjudged by the Court that the judgment of the Court below should be, and the same is hereby, affirmed.

TERRELL, C. J., and WHITFIELD, ELLIS, STRUM, BROWN and BUFORD, J. J., concur. *Page 829