Appeal by the New Bern-Craven County Board of Education, judgment creditor and private prosecutor, from Winberry, Judge. Order entered 25 September 1981 in Superior Court, Craven County. Heard in the Court of Appeals 26 May 1982.
Whichard, Judge. Judges Clark and Webb concur.
On 12 December 1979 a warrant issued for defendant's arrest for assault with a deadly weapon with intent to kill. On 21
December 1979 defendant and the surety executed a bond to secure defendant's appearance for trial on that charge.
On 27 December 1979 a warrant issued for defendant's arrest for ravishing and carnally knowing a female of the age of twelve years or more. The court released defendant on the same bond as in the prior assault case.
Upon defendant's failure to appear for arraignment, the court entered duplicate orders for his arrest which were returned unexecuted because defendant could not be found. The court then ordered the appearance bond forfeited; and, after notice to the obligors, on 12 January 1981 it entered judgment against them for the amount of the bond and costs.
On 18 August 1981, more than 90 days after entry of judgment on the bond, and apparently subsequent to issuance of execution on the judgment (see G.S. 15A-544(f) (1978)), the surety moved for an order striking the forfeiture and recalling all outstanding executions. The motion alleged that the surety was defendant's employer; that he had not been advised of defendant's release on the second charge under the same bond as on the first; that he had "assumed no obligations under the second charge and had no knowledge of the same at the time of the consolidation of the bond requirement for release"; and that the release on the second charge under the bond he had signed on the first "was an alteration and modification of any liabilities existing on his behalf and substantially changed and modified the conditions existing at the time of the signing of the initial surety agreement."
The surety thereafter filed in support of the motion an affidavit which stated the following:
The surety owned and operated a small farm with one part-time employee and provided the sole support for himself, his wife, and three minor children. In 1980 he did not report any taxable income after expenses, and his prospects for 1981 were not bright.
Defendant, whose family had a history of mental retardation, had worked for the surety for approximately six years. The surety allowed defendant to work for him so defendant could provide partial support for his family. When the initial assault charge was lodged against defendant, the surety signed defendant's bond to
enable defendant to remain employed and thus able to continue partial ...