¶1On the Merits.
¶2Act No. 17, p. 23, of 1900, declares:
“That it shall be the duty of the Attorney General and the several district attorneys in their respective districts (the parish of Orleans excepted) on the convening of district courts, leave of the court being first obtained, which leave shall always be presumed, to call any or all persons who may have entered into any bond, recognizance or obligation whatsoever in any criminal case, for their appearance at court, and also to call on the sureties on such bond, recognizance or obligation to produce instanter in open court such defendant or party accused, and upon failure to comply therewith, on motion of the attorney representing the state, the court shall forthwith enter up judgment against such principal and securities in solido for the full amount of such bond, recognizance or obligation.
“The judgment so rendered may at any time within five days thereof be set.aside upon the appearance and trial and conviction or acquittal, or upon a continuance after such appearance granted upon motion of the attorney representing the state.
“Such judgment shall not be rendered in case it shall be made to appear to the satisfaction of the court that the defendant or party accused is prevented from attending by some physical disabilty.”
¶3The district attorney in this ease followed the directions of the statute; but, on the failure of the defendant to appear on being called, the case was immediately continued on motion of the district attorney. Within five days of the judgment of the forfeiture of the bond, defendant made a voluntary appearance in court and prayed to have his case tried and the judgment of forfeiture set aside.
¶4The court declined to set aside the judgment of forfeiture. We are of opinion that, the case having been continued on motion of the district attorney before the five days had elapsed within which defendant had the legal right to appear and have the judgment of forfeiture set aside, the court erred in refusing to set the judgment of forfeiture aside. The continuance of the case by the district attorney prior to the expiration of the five days allowed to the accused to make a voluntary appearance in court cannot be made to prejudice the right of an accused, who voluntarily appears in court, within five days after the rendition of a judgment forfeiting an appearance bond, to have said judgment set aside and move to have his case tried.
¶5For the reason herein assigned, it is hereby ordered, adjudged, and decreed that the action of the district court in refusing to set aside the judgment of forfeiture of plaintiff’s bond be and the same is hereby annulled, avoided, and reversed, and it is ordered, adjudged, ■ and decreed that said judgment of forfeiture be and the same is hereby set aside.