Stepp v. . Robinson

Stacy, C. J., after stating the case: When the defendant, R. P. Robinson, appeared in open court, in response to notice served upon bis surety or bail, be was then “amenable to the process of the court,” notwithstanding bis refusal thus to surrender himself. It was the contention of the defendant and bis surety, upon the bearing of said motion, that the defendant bad theretofore been discharged from liability to arrest, and for this reason, voluntary surrender was refused. Upon rejection of this contention, the court should have ordered execution against the person of the defendant, rather than bold the surety or bail, who was not present, for failure to surrender him. Pickelsimer v. Glazener, 173 N. C., 630, 92 S. E., 700; Ledford v. Emerson, 143 N. C., 527. 55 S. E., 969. *805 Tbe condition of the undertaking is, tbat the defendant shall, at all times during the pendency of the action, render bimself amenable to the process of the court. Tbis condition was met wben the defendant voluntarily appeared in court upon the bearing of the motion against his surety. It is true, be contended tbat be was not liable to be taken in arrest, but tbis was not a matter for him to decide. S. v. Lingerfelt, 109 N. C., 775, 14 S. E., 75. Tbe primary object in taking bail in such cases is, not to recover tbe penalty of tbe bond upon default, but to keep tbe defendant within tbe jurisdiction and call of tbe court. Pickelsimer v. Glazener, supra. There was error in entering judgment against the surety wben the condition of the bond bad been met by the defendant voluntarily appearing in court and thus rendering bimself “amenable to the process of the court.” Watson v. Willis, 24 N. C., 17; Mears v. Speight, 49 N. C., 420; Sedberry v. Carver, 77 N. C., 319; Dick v. Stoker, 12 N. C., 91, 3 R. C. L., 49. Error.