#### STATE v. MARVIN BRANCH and R. T. SIDES, Surety.

(Filed 21 November, 1934.)

Bail B e — Judgment against surety on ground that defendant had failed to appear in court as required held erroneous upon findings of court.

Judgment against defendant in a prosecution for abandonment was suspended upon condition that be pay into court for the benefit of bis children a certain sum monthly and give bond for the cost and payment of the sum stipulated. Thereafter scire facias was issued against the surety on the bond solely on the ground that defendant had failed to appear in court as required by his bond, but the court found upon issuance *416of the soire facias that the defendant had never failed to appear in court at any term as required: Held,, upon the findings of the court upon issuance of the scire facias, judgment absolute against the surety in the penal sum of the bond was error.

Civil actioN, before Stack, J., at August Term,, 1934, of OabaeRus.

At tbe August Term, 1933, Marvin Branch was tried in the Superior Court on charges of abandonment and nonsupport. He pleaded guilty of nonsupport of his children, “which plea was accepted by the State.” The prayer for judgment was continued for two years upon condition that the defendant pay the cost, and the further condition that he pay the sum of $20.00 per month for the support of his two children, payable to the clerk of the court of Cabarrus County on or before the first day of each month for a period of two years; and upon the further condition “that he pay $20.00 of the cost at this term, and give bond to secure the balance to be paid at the October Term of court, 1933.” Thereupon a bond was given in the sum of $300.00, signed by R. T. Sides as surety. This bond provided that Marvin Branch “shall make his personal appearance at the next term of this court and pay the cost of the court and $20.00 per month for the support of same. . . . This bond is to insure payment of above.” At the October Term, 1933, the defendant Branch was sentenced to work the roads for a period of four months. Thereafter, at the January Term, 1934, the records show the following entry: “Order restored on motion of solicitor.” Subsequently, at the April Term, 1934, the following entry was made in the case, to wit: “At this term, on motion of counsel for the State, the defendant was discharged and the cause transferred to the scire facias docket. Motion for scw-e facias against the defendant and surety on his bond is allowed. Scire facias to issue.

“The court finds as a fact, from information furnished him by counsel for the State, counsel for the defendant, and the clerk, that the defendant has never been called out or failed to appear here at any term since this case has been pending in the Superior Court.”

Accordingly, a scire facias was issued to the surety, Sides, reciting a judgment nisi for $300.00 at the March Term, 1934, in favor of the State and against Marvin Branch and his surety, R. T. Sides, . . . “according to the provision of the act of the General Assembly, concerning bail, for the personal appearance at said term of our court of said Marvin Branch in the matter of the State v. Marvin Branch then pending in said Superior Court.”

From the foregoing judgment the defendant appealed.

Attorney-General Brummitt and Assistant Attorneys-General Seawell and Bruton for the State.

HartseTl & Hcurtsell for defendants.

*417Pee OueiaM.

No facts were found by tbe trial judge and no finding was requested by tbe defendant wben tbe judgment absolute was entered on tbe scire facias against tbe surety. However, at tbe April Term, 1934, wben tbe scire facias was issued, tbe trial judge found as a fact tbat tbe defendant Prancb bad never failed to appear at any term of court while tbe case was pending and before it was finally disposed of. Tbe scire facias recites tbat tbe surety, R. T. Sides, “bad become bound as bail, . . . for tbe personal appearance at tbe said term of our court of said Marvin Branch.” Hence, it is obvious tbat tbe scire facias was apparently issued on tbe sole ground tbat tbe defendant Branch bad failed to make bis appearance as required by tbe terms of tbe bond.

Interpreting tbe record in tbe light of tbe findings of tbe judge at tbe April Term, 1934, tbat tbe defendant bad always appeared as required, it would seem tbat tbe judgment absolute rendered was not justified.

Error.