#### STATE v. RUFUS WIGGINS.

(Filed 15 October, 1947.)

Arrest and Bail § 8—

On appeal from conviction in Recorder’s Court defendant gave appearance bond. Upon failure of defendant to appear in tbe Superior Court judgment nisi was entered and scire facias and capias ordered issued and tbe action continued. Later, motion to strike out sci. fa. during pendency of defendant’s military service was allowed. Held,: Tbe sci. fa. having been stricken out, judgment absolute on tbe bond before issuance and service of another sci. fa. is premature. Whether the judgment nisi should be made absolute or stricken out upon the subsequent hearing rests in the sound discretion of the trial court. G. S., 15-116.

Appeal by J. W. Willie and Ossie Wiggins Willie, sureties on defendant’s appearance bond, from JEdmundson, Special Judge.

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 *77term of tbe said Superior Court to be beld on Monday, 6 September, 1943, and not depart tbe same without leave.

At tbe September Term, 1943, of said Superior Court defendant was called in cases Nos. 723 and 724 and failed to appear. Whereupon, tbe court entered judgment nisi, and ordered scire facias and capias to issue, and tbe action to be continued. Scire facias was issued on 11 December, 1943, and served. Thereafter, at tbe 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 pen-dency of military service of defendant.”

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

From this judgment tbe sureties on tbe bond appeal to Supreme Court and assign error.

Attorney-General McMullan and Assistant Attorneys-General Bruton, Rhodes, and Moody for the State.

Charles L. Abernethy, Jr., and John D. Larlcins, Jr., for appellants.

WiNBOBNE, J.

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

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

Reversed.