State v. Hutchins , 185 N.C. 694 ( 1923 )

Hoice, J\,

after stating tbe case: Tbe appearance bond on which tbe judgment has been entered is in terms as follows:

We, Charlie Hutchins and R. S. Russ, of said county, acknowledge ourselves to be severally indebted to the State of North Carolina in the sum of $100 to be well and truly paid if default shall be made in the following condition:

The condition of this recognizance is such tbat if the said Charlie Hutchins shall personally appear at the next criminal term of the Superior Court of Forsyth County, to be held at the courthouse in Winston-Salem on 3 October, 1921, then and there to answer the charge preferred against him for operating auto intoxicated, and to do and receive what shall by the court be then and there enjoined upon him, and shall appear and attend at such time or times thereafter as the court may appoint upon any and all adjournments and continuances of said cause until the final disposition thereof, and shall not depart the court withqut leave, then this recognizance to be void, otherwise of force and effect.

C. S. Hutchins, [seal.]

R. S. Russ. [seal.]

In reference to bonds of this purpose and tenor, it has been uniformly held in this jurisdiction that they constitute a continuing obligation, and that neither principal nor surety is relieved until the cause is finally disposed of, or they are discharged by order of the court. S. v. Eure, 172 N. C., 875, and authorities cited. S. v. White, 164 N. C., 410; S. v. Schenck, 138 N. C., 560; S. v. Morgan, 136 N. C., 602; S. v. Jenkins, 121 N. C., 637; S. v. Smith, 66 N. C., 620; 5 Cyc., 123; 3 A. & E. (2 ed.), p. 714. In this last citation the principle as it prevails with us is stated as follows: “Neither does the obligation end with the term at which the principal is recognized to appear, but if the cause against him be continued, the bail are bound to have him in court at each succeeding term thereafter, until he is convicted or acquitted, or they are otherwise legally discharged.”

And S. v. Schenck, supra, is quoted with approval as holding that the bond binds the sureties for the continued appearance of their principal from day to day until finally discharged by the court, and he must answer its call at all times and submit to the final judgment. Nor is the position affected because the appeal was not docketed at the ensuing term. that is a duty incumbent on the appellant, and while it bas been decided that the docketing at a subsequent term may not be allowed over the protest of the appellee, it is also beld that the failure to docket may be waived by the appellee, or the right to dismiss lost by bis laches, and the objection, therefore, does not present a jurisdictional question. Barnes v. Saleeby, 177 N. C., 256; Love v. Huffines, 151 N. C., 378.

On tbe record we are of opinion tbat neither position of appellant can be sustained, and tbe judgment of tbe Superior Court must be

Affirmed.