
    Robinson et al. v. Gordon, governor.
    Judgment for the penalty of a supersedeas bond or recognizance given in a criminal case for the appearance of the accused, cannot be entered up on mere motion, without suit by scire fdeias or otherwise. A judgment so entered is a nullity, and a motion to set it aside should be granted.
    June 2, 1890.
    Bonds. Supersedeas. Judgments. Practice. Before Judge Willis. City court of Columbus. January term, 1890.
    At the July term, 1889, of the city court of Columbus, Prank Robinson was convicted of fornication, and sentenced to twelve months in the chain-gang. During that term he moved for a new trial, and the hearing of the motion was continued until August 19th. On the second day of that month, he gave a bond in the sum of $200, with W. H. and A. B. Robinson as securities, conditioned that he should appear at the next term of the court, and from day to day and from term to term until discharged by law, to abide the final order, judgment or sentence of the court, and not depart thence without the leave of the court. The motion for a new trial was heard and overruled, and notice was given that the case would be taken to the Supreme Court. A supersedeas bond was given in the sum of $200, and A. B. Robinson, one of the securities, deposited that sum with the clerk of the court to abide the final sentence of the Supreme Court. No bill of exceptions was made or tendered, and the case was not taken to the Supreme Court. On October 25th, during the October term of the court, Frank Robinson not appearing, the court entered up judgment against him and his securities in favor of the governor, on the bond, to be recovered of the amount deposited with the clerk. No rule nisi was issued, and the securities were not called upon or served with any order of scire facias to produce their principal, and had no notice of the forfeiture. On January 6, 1890, the first day of the January term of the court, the sureties surrendered their principal to the sheriff and moved the court to set aside the judgment of forfeiture. The motion was overruled, and exception was taken.
    Martin & Worrill, for plaintiffs in error.
    T. Y. Crawford, solicitor, contra.
    
   Bleckley, Chief Justice.

A more striking misconception or misapplication of law than this case presents we have never known. Grant that the bond was a supersedeas bond such as is contemplated in section 4263 of the code, still it was given in'a criminal case and was conditioned, not for payment of condemnation money, but for the appearanee of the accused, who had been sentenced, not to pay a fine, but to serve in the chain-gang. Suppose, also, that the failure to take steps to carry the case to the Supreme Court was equivalent to actually carrying it there, with the result of an affirmance of the judgment below. That judgment being one for punishment and not for the' payment of money, how would it be possible to apply the provisions of the act of 1870, forming a part of section 4268 of the code, to the case ? For that act only gives the option of entering up judgment in the way and manner of doing it on appeal bonds, or else on bonds given for the stay of execution. To do it in either of these modes implies that the affirmed judgment «must be one for money, and that the judgment to be entered on the bond is not for the penalty of the bond, but for the amount of the judgment which has been affirmed. The truth is, that the act of 1870 applies only to supersedeas bonds given in civil cases, and that to recover the penalty of a supersedeas bond given in a criminal case, scire facias is the remedy. Such bonds are to be forfeited, and the forfeiture enforced under the general provisions of law found in sections 4702, 4703 of the code. The judgment rendered on the bond in this case upon mere motion was a nullity, and the motion to set it aside should be granted.

Judgment reversed. '  