The opinion
BaeNHILl, O.
J. Tbe records in this and companion cases now pending in this Court are in a state of confusion. We may only surmise what happened in tbe court below. Tbe clerk first certified tbe record proper and assignments of error, and tbe appeal was docketed here. Appellant thereafter filéd with tbe Clerk of this Court what purports to be an agreed case on appeal. It likewise filed here its “Assignment of Error No. 7.”
There is nothing in tbe record to indicate that tbe surety offered any evidence, either oral or documentary, in support of its motion to vacate tbe judgment absolute to tbe end tbe surety might have additional time in which, to locate and produce tbe defendant. Yet tbe trial calendar for' that two weeks’ criminal term of court, telegrams, summaries of telephone conversations, and other extraneous matter are included.
When tbe record is boiled down to its essentials, it becomes apparent that tbe one and only question of law presented for consideration is this:
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Did the court below commit error when it declined to consider the motion to vacate or modify the judgment absolute in so far as it was directed to the discretionary authority of the court and limited the hearing to such evidence as tended to establish a legal defense or to show that the defendant, at the time the judgment
nisi
was entered, was in prison in some other jurisdiction? In other words, was the bondsman entitled to a hearing under G.S. 15-116 as a matter of right?
Ordinarily we might answer in the affirmative. On the particular facts appearing in this record we are constrained to say. that if it was the duty of the court at that time to hear and rule on the motion in the exercise of his discretion, his refusal so to do did not prejudice the defendant.
The original answer to the
scire facias
fails to disclose excusable neglect on the part of the surety or its attorney. Nor does it contain any allegations of fact which would constitute a legal defense or appeal to the conscience and sense of fair play of the judge. In fact, it is nothing more than an appeal for additional time. The verified motion is lacking in merit. The defendant was at the time a fugitive from justice and there were several other cases on the docket in which judgments absolute had been entered against the appellant and were still unsatisfied.
The liability of a surety on an appearance bond is primary. Service of the
scire facias
on the principal is not a prerequisite to a judgment absolute against the surety.
Tar Heel Bond Co. v. Krider,
218 N.C. 361 , 11 S.E. 2d 291 ;
S. v. Brown,
218 N.C. 368 , 11 S.E. 2d 294 .
The
scire facias
served on the appellant gave it ample notice that it was required to appear on the first day of the May Term and show cause, if any it had, why judgment absolute should not be entered. Neither the fact there was a trial calendar nor the fact there was no
scire facias
calendar prepared for the term imposed on the judge or the solicitor any obligation to give appellant or its attorney any additional notice. It was a term-time matter. Appellant had notice the cause was pending for motion for judgment absolute, and it knew that the defendant had not been apprehended. It was its duty to attend to the business at hand or else suffer the consequences.
So then, at the time the court declined to vacate the judgment there was no fact or circumstance disclosed to the court in appellant’s pleadings filed which, if true, would constitute a legal defense or appeal to the discretionary authority of the judge. Should we now direct the court below to vacate the judgment, the State would have the right to demand the immediate entry of its counterpart. Why should we do a vain and useless thing ?
Assignments of error may not be filed, in the first instance, in this Court. They must be filed in the trial court and certified with the case
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on appeal. G-.S. 1-282. Therefore, appellant’s purported assignment of error No. 7 presents no question for this Court to consider and decide. In any event, as the record is silent on the question, we must assume that the judge had ample cause for entering that part of the judgment to which this assignment is directed.
Should the surety hereafter apprehend the defendant and deliver him to the authorities of Wilson County for trial in this ease, it may still be heard under the provisions of G.S. 15-116.
S. v. Bradsher,
189 N.C. 401 , 127 S.E. 349 ;
S. v. Clarke,
222 N.C. 744 , 24 S.E. 2d 619 ;
Tar Heel Bond Co. v. Krider, supra; S. v. Brown, supra.
If the defendant was in fact in the custody of the Wilson County authorities or of the State Highway and Public Works Commission at the time he was called and judgment
nisi
was entered, this would constitute a legal defense and appellant may now enter its motion to vacate the judgment absolute with the assurance it will be afforded an opportunity to establish that fact.
S. v. Eller,
218 N.C. 365 , 11 S.E. 2d 295 .
The judgment entered in the court below is
Affirmed.