By opinion filed this day, this Court has held that Judge Copeland erred in entering judgment absolute, and the judgment against the cash bond was reversed. While this holding, for all practical purposes, renders moot the question raised by the appeal in this case, we think the question raised should be answered.
G.S. 15-116 provides:
“The judges of the superior and district courts may hear and determine the petition of all persons who shall conceive they merit relief on their recognizances forfeited; and may lessen, or absolutely remit, the same, and do all and anything therein as they shall deem just and right and consistent with the welfare of the State and the persons praying such relief, as well before as after final judgment entered and execution awarded.”
Referring to this statute (then Bat. Rev., chap. 33, secs. 83, 84, 85), the Supreme Court, in State to the use of the Board of Education v. Moody, 74 N.C. 73 (1876), said:
“The statute is so broad that there can be no doubt that the Judges of the Superior Courts have the power to remit or lessen forfeited recognizances, either before or after final judgment, upon the petition of the party aggrieved. . . . And this is a matter of judicial discretion in the Judges below, which we cannot review, except for some error in a matter of law or legal inference.” 74 N.C., at 74-75.
Judge Hobgood’s failure to exercise discretion and ruling that, as a matter of law, he could not review the order of forfeiture constitutes error in a matter of law and makes his judgment reviewable. Because Judge Hobgood, in failing to exercise the power of judicial discretion conferred by statute, committed error prejudicial to defendant, the judgment must be
Reversed.