#### JAMES F. STEPP v. R. P. ROBINSON et al.

(Filed *4*January, 1933.)

Bail B e — Defendant was amenable to process of court upon appearance on motion against surety, and judgment against surety was error.

Upon motion against the surety on a bail bond the defendant, in response to notice served upon the surety, C. S., 794, appeared in open court. Tbe surety was not present upon the bearing of the motion. Tbe defendant was given opportunity to voluntarily surrender bimself, wbicb be refused upon bis contention that be was not liable to be taken in arrest. Judgment was entered against the surety, C. Si, 778, 792. *Held,*upon the defendant’s appearance in open court be was “amenable to the process of the court” and the judge should bave ordered execution against the person of the defendant, the defendant’s contention that be was not *804liable to be taken in arrest notwithstanding, and tbe judgment against tbe surety was erroneous, tbe primary object in taking bail being to keep the defendant within tbe jurisdiction and call of tbe court and not to recover the penalty on the bail bond.

Appeal by surety on bail bond, from *Schenck, J.,*at May-June Term, 1932, of HeNdeesoN.

Civil action for damages, arising out of fraud, tried upon issues set out in 201 N. 0., 848, witb ancillary remedy of arrest and bail.

Upon tbe arrest of tbe defendant, be gave undertaking, or bail-piece, witb bis wife as surety, conditioned, as provided by C. S., 178, “that if tbe defendant, R. P. Robinson, is discharged from arrest be shall, at all times, render himself amenable to tbe process of tbe court during tbe pendency of this action, and to such process as may be issued to enforce judgment thereon.”

There was a verdict and judgment for tbe plaintiff. Execution issued against defendant’s property was returned *“Nulla bona”j*and execution against tbe person of tbe defendant was returned *“non est inventus.”*Whereupon, after notice to tbe surety or bail, as required by C. S. 794, there was judgment, as we understand tbe record, against tbe surety, Dora Robinson.

It appears that upon tbe final bearing of said motion, “tbe defendant, R. P. Robinson, who was present in court, was given opportunity to surrender himself to tbe process of tbe court, and tbe defendant, Dora Robinson, who did not appear in person, was given opportunity to surrender tbe defendant to tbe process of tbe court, as provided by C. S., 792, which opportunity was refused at tbe time.”

From judgment against tbe surety, she appeals.

IP. *R. Sheppard for plaintiff.*

*B. L. Whitmire for defendant, Dora Robinson.*

Stacy, C. J.,

after stating the case: When the defendant, R. P. Robinson, appeared in open court, in response to notice served upon bis surety or bail, be was then “amenable to the process of the court,” notwithstanding bis refusal thus to surrender himself. It was the contention of the defendant and bis surety, upon the bearing of said motion, that the defendant bad theretofore been discharged from liability to arrest, and for this reason, voluntary surrender was refused. Upon rejection of this contention, the court should have ordered execution against the person of the defendant, rather than bold the surety or bail, who was not present, for failure to surrender him. *Pickelsimer v. Glazener,*173 N. C., 630, 92 S. E., 700; *Ledford v. Emerson,*143 N. C., 527. 55 S. E., 969.

*805Tbe condition of the undertaking is, tbat the defendant shall, at all times during the pendency of the action, render bimself amenable to the process of the court. Tbis condition was met wben the defendant voluntarily appeared in court upon the bearing of the motion against his surety. It is true, be contended tbat be was not liable to be taken in arrest, but tbis was not a matter for him to decide. *S. v. Lingerfelt,*109 N. C., 775, 14 S. E., *75.*

Tbe primary object in taking bail in such cases is, not to recover tbe penalty of tbe bond upon default, but to keep tbe defendant within tbe jurisdiction and call of tbe court. *Pickelsimer v. Glazener, supra.*

There was error in entering judgment against the surety wben the condition of the bond bad been met by the defendant voluntarily appearing in court and thus rendering bimself “amenable to the process of the court.” *Watson v. Willis,*24 N. C., 17; *Mears v. Speight,*49 N. C., 420; *Sedberry v. Carver, 77*N. C., 319; *Dick v. Stoker,*12 N. C., 91, 3 R. C. L., 49.

Error.