Current v. Church

• Decision Date: 28 January 1935
• Docket Number: No. 748.,748.
• Citation: 207 N. C. 668,178 S.E. 82
• Parties: CURRENT. v. CHURCH, Superior Court Clerk.
• Court: North Carolina Supreme Court

207 N. C. 668

178 S.E. 82

CURRENT.

v.CHURCH, Superior Court Clerk.

No. 748.

Supreme Court of North Carolina.

Jan. 28, 1935.

Appeal from Superior Court, Forsyth County; Alley, Sr., Judge.

Clyde Fowler was convicted of operating a lottery, and on appeal entered into a recognizance for appearance with J. S. Current as surety. On his failure to pay fine on affirmance of conviction execution was servedagainst bond. From an order dismissing execution and returning to surety amount deposited in lieu of bond, the State and Board of Education of Forsyth County appeal. Affirmed.

By agreement the petition filed in the above-entitled cause was transferred and treated as a motion in the cause for return of cash bond deposited for appearance of the defendant in the case of State v. Fowler, 205 N. C. 608, 172 S. E. 191.

The facts are these:

(1) At the May term, 1933, Forsyth superior court, Clyde Fowler was convicted of operating a lottery, and sentenced to six months on the roads and to pay a fine of $1,000 and the costs.

(2) An appeal was taken and a "Recognizance of Defendant" in the sum of $1,500 was entered into by the defendant, with J. S. Current as surety, to "personally appear at the next criminal term of the Superior Court of Forsyth County * * * on the 19th day of June, 1933, * * * to answer the charge preferred against him for Lottery * * * to do and receive what shall by the court be then and there enjoined upon him * * * and shall not depart the court without leave."

(3) The surety deposited with the clerk of the superior court the sum of $1,500 in cash.

(4) The appeal of the defendant Fowler was heard at the Fall term, 1933, and the judgment affirmed January 10, 1934.

(5) The defendant voluntarily entered into the execution of his road sentence, but is insolvent and has failed and refused to pay the fine and costs imposed upon him.

(6) Execution against the property of the defendant having been returned nulla bona, the same was served against the cash bond in the hands of the clerk.

The court, being of opinion that the "Recognizance of Defendant" was not a stay bond within the meaning of the law, dismissed the execution and ordered that the $1,500 deposited with the clerk in lieu of bond be returned to the surety.

Front this ruling, the state and the board of education of Forsyth county appeal, assigning errors.

Hastings & Booce, Peyton B. Abbott, and J. Erie McMichael, all of Winston-Salem, for appellants.

Slawter & Wall, of Winston-Salem, and Brooks,...