#### STATE v. JAMES DEW and STATE-WIDE BAIL, INC.

(Filed 22 September, 1954.)

1. Arrest and Bail § 8—

Where the surety’s answer to a *scire ■facias*amounts to nothing more than a plea for additional time, without allegation of facts disclosing excusable neglect or constituting a legal defense or appealing to the conscience and sense of fair play, judgment absolute against the surety is proper.

a. Same—

The liability of a surety on an appearance bond is primary, and therefore service of *scire facias*on the principal is not a prerequisite to judgment absolute against the surety.

3. Same—

The service of a *scire facias*on the surety gives the surety notice to appear at the next term of court, and no other notice by the judge, the solicitor, or calendar is necessary, it being a term-time matter.

4. Same—

Where the original answer to a *scire facias*presents no legal defense or matters appealing to the conscience or sense of fair play, and there is no exception to the court’s refusal to permit the surety to file an unverified, amended answer setting forth a legal defense, the refusal of the court to grant the surety’s verified motion to vacate the judgment absolute on the *596bond will not be held for prejudicial error, since upon tbe record if tbe judgment were vacated tbe State would be entitled to have tbe same judgment re-entered.

5. Appeal and Error § 23—

Assignments of error must be filed *in the*trial court and certified with the case on appeal. An assignment of error filed initially in tbe Supreme Oourt will be disregarded. G.S. 1-282.

6. Appeal and Error § 38—

Where tbe record is silent upon a particular point, tbe action of tbe trial court will be presumed correct.

7. Arrest and Bail § 8—

Where judgment absolute has been entered against tbe surety on an appearance bond, the surety is entitled upon tbe later apprehension and delivery of tbe defendant to tbe authorities of that county for trial, to be beard under tbe provisions of G.S. 15-116 upon its motion to modify or vacate tbe judgment absolute.

Appeal by tbe surety on defendant's appearance bond from *Morris, J.,*May Term 1954, WtlsoN.

Affirmed.

Criminal indictment, beard on motion to vacate or modify judgment absolute entered against tbe surety on defendant's appearance bond.

A true bill of indictment charging tbe commission of a felony was returned against tbe defendant at tbe December 1953 Term of tbe Superior Court of Wilson County. ITe was apprehended and executed bond for bis appearance at tbe February 1954 Term of court. State-Wide Bail, Inc. executed tbe bond as surety.

The defendant failed to appear at the February 1954 Term as be was bound to do. He was duly called and failed to answer. Thereupon tbe court entered judgment *nisi*on tbe bond and directed that a *scire facias*and capias be forthwith issued. Tbe *scire facias,*returnable on 3 May 1954, tbe first day of tbe May Term, was duly served on tbe surety. On 8 April 1954 tbe surety filed with tbe clerk a paper writing which purports to be an answer to tbe *scire facias.*On 3 May 1954, tbe return date of tbe *scire facias,*judgment absolute on tbe appearance bond was duly entered against tbe surety. Neither tbe surety nor its attorney was in court at tbe time. Counsel bad gone to Winston-Salem to attend to other business.

After some little negotiation by telegram, telephone, and otherwise, between counsel, tbe solicitor, and tbe judge, counsel for tbe surety was notified that be might appear on 11 May and present any legal defense set forth in *S. v. Pelley,*222 N.C. 684, 24 S.E. 2d 635, and to show that tbe defendant failed *to*appear for tbe reason be was then serving a sentence in another jurisdiction, if such showing could be made, but that tbe *597judge would not bear a motion to vacate or modify tbe judgment absolute wbieb was addressed solely to bis discretion; that be would decline to exercise bis discretion in favor of tbe surety at that time.

On 11 May 1954, counsel for tbe surety appeared, tendered a proposed amendment to bis original answer, and filed a motion to vacate tbe judgment and for an extension of time within which to apprehend and produce tbe defendant, or, in any event, that tbe surety “be beard in mitigation of forfeiture under such terms as may be fair and just.”

In tbe proposed unverified amendment to tbe answer it is alleged that at tbe time tbe defendant defaulted be was serving a sentence in another jurisdiction; that be was thereafter apprehended and returned to tbe "Wilson County jail; that be is now serving a sentence imposed in Wayne County; and that be will be delivered to the officers of Wilson County so soon as be completes tbe sentence be is now serving.

Tbe court made an entry at tbe foot of tbe proposed amendment to tbe answer as follows: “This amended answer tendered and declined and motion to strike judgment is declined. This May 11, 1954. Morris, J.” Tbe surety did not except.

The record fails to disclose that any bearing was bad on 11 May or that tbe surety tendered any evidence as to tbe whereabouts of tbe defendant at tbe time be failed to appear or at any subsequent time or any other evidence whatsoever for tbe consideration of tbe court.

On 24 May 1954 tbe defendant gave written notice of its exception to tbe order entered by the court below and of its appeal to tbe Supreme Court. Service thereof was accepted by tbe solicitor.

*Charles L. Abernethy, Jr., for appellant.*

*Luke Lamb for appellee.*

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: *598Did 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 *599on 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.