State v. . Wiggins , 228 N.C. 76 ( 1947 )

Criminal prosecution upon warrant issued 9 June, 1945, out of Justice of Peace Court of Craven County, charging defendant with the offense of fornication and adultery.

Defendant, having been bound over to the Recorder's Court of Craven County, and having been adjudged guilty and given a jail sentence by the Recorder's Court, appealed to Superior Court of Craven County. Bond, in the amount fixed, was given by defendant, with J. W. Willie and Ossie Wiggins Willie, as sureties, for his personal appearance at the next term of the said Superior Court to be held on Monday, 6 September, 1943, and not depart the same without leave.

At the September Term, 1943, of said Superior Court defendant was called in cases Nos. 723 and 724 and failed to appear. Whereupon, the court entered judgment nisi, and ordered scire facias and capias to issue, and the action to be continued. Scire facias was issued on 11 December, 1943, and served. Thereafter, at the January Term, 1944, of Superior Court of said county this entry was made: "No. 723-4. State v. Rufus Wiggins. Motion to strike out Sci. Fa. Motion allowed during pendency of military service of defendant."

Thereafter, at the June Term, 1947, upon motion of the Solicitor for the State, and without further scire facias being issued and served, the court entered judgment absolute against defendant and the sureties on his bond for the amount of the bond.

From this judgment the sureties on the bond appeal to Supreme Court and assign error. The validity of the judgment absolute entered at the June Term, 1947, depends upon the effect of the order made at January Term, 1944. As we interpret the wording of that order the motion to strike out the sci. fa. was allowed, and that no further proceedings on the forfeited bond should be had "during the pendency of military service of defendant." Therefore, the sci. fa. having been stricken out, judgment absolute could not be entered without further notice, that is until another sci. fa. had been issued and served, and defendant and sureties given an opportunity to be heard. Whether the judgment nisi will then be made absolute, or whether it will be stricken out, rests in the discretion of the presiding judge of the Superior Court before whom it may properly come. G.S., 15-116. S. v.Clarke, 222 N.C. 744, 24 S.E.2d 619.

In the light of this interpretation of and holding on the order, the judgment absolute was prematurely entered, and is therefore

Reversed.