Allen v. Cape Brewery & Ice Co.

196 Mo. 435 | Mo. | 1906

BURGESS, P. J.

is an action by plaintiff against the defendant for five thousand dollars actual and five thousand dollars punitive damages for false imprisonment. After all of plaintiff’s evidence was in the defendant asked an instruction in the nature óf a demurrer thereto, and directing the jury to return a verdict for defendant, which instruction the court gave, and the jury returned a verdict as directed. After ineffectual motion to set the verdict aside and for a new trial, plaintiff appeals.

On the 15th day of December, 18991, the prosecuting attorney of Madison county filed with a justice of the peace of said county an information charging the plaintiff herein with unlawfully selling intoxicating liquors to a minor, under the age of twenty-one years, without the written permission of the parents, master or guardian of said minor first had and obtained. On the same day the information was lodged with the justice of the peace, he issued a warrant for the arrest of Allen, by the authority of which said Allen was duly arrested on the 18th day of December, 1899, and taken before said justice, and on the 21st day of December, 1899, he entered into a recognizance to the State of Missouri in the sum of one hundred dollars, as principal, with the Cape Brewery & Ice Company and H. R. Wilier as his sureties, for his appearance personally before said justice of the peace on the 22d day of January, 1900, in the county of Madison aforesaid, to answer the charge alleged against him in said information and not depart without leave of said justice, which recognizance was then and there approved and filed with said justice. The cause, by consent of the parties, was continued from time to time, the last continuance being to the 4th day of October, 1900. On that day the defendant therein was called for trial, but made default. The sureties upon his recognizance were also called, but made no response; whereupon the justice entered a forfeiture of said recognizance and ordered that the recognizance and a copy of the entries upon his docket in relation to said cause and forfeiture be certified to the circuit court of said county of Madison, which was done by him in conformity to said order. Thereafter, before fina] judgment was rendered upon said recognizance, the Cape Brewery & Ice Co. and H. R. Wilier, sureties upon said recognizance and bond, procured from the clerk of said circuit court a certified copy thereof, and defendant company, by its agent, caused Allen to be apprehended and delivered to George Heltibrand, sheriff of Madison county.

On September 26,1901, the forfeiture of the recognizance was set aside by the circuit court of Madison county, and Allen was released from custody. Plaintiff then instituted this suit.

It is claimed by plaintiff that his arrest and surrender to the sheriff by the defendant company was without authority, because he appeared for trial before said justice on the 22d day of January, 1900, according to . the terms and conditions of said recognizance, and that it and all proceedings thereon were without authority and void.

The effect of the recognizance was to bind the defendant to appear before Justice Alumbaugh on the 22d day of January, 1900, at which time he appeared before said justice in compliance with the terms and conditions of the recognizance, but the cause was post-, poned to another day, and finally until the 4th day of October, 1900, but no default or judgment of forfeiture was entered by the justice until the failure of Allen to appear upon the day last named. It was then too late to render judgment of forfeiture, as the recognizance had expired. Section 2759, Revised Statutes 1899, provides that for good cause shown, the justice may postpone the trial of the cause to a day certain, in which case he shall require the defendant to enter into a recognizance, with sufficient security, conditioned that he will appear before the justice at the time and place appointed, then and there to answer the charge alleged against him in the information. Section 2760, Revised Statutes 1899, provides that, if the defendant shall fail or refuse to enter into recognizance, the justice shall commit him to the common jail of the county, or other prison, there to remain until the day fixed for the trial.

As Allen appeared before the justice on the 22d day of January, as required by the recognizance, to answer the charge preferred against him in the information, and remained until the case had been postponed, by agreement, to another day, and no further steps were taken to secure his appearance before the justice, the recognizance was discharged and could not be forfeited at the time to which the case was finally postponed, to-wit, October 4, 1900, [State v. Mackey, 55 Mo. 51.] It follows that the default and forfeiture entered by the justice were without jurisdiction, and void, and there was, therefore, no authority for Allen’s arrest and delivery to the sheriff.. Nor was there any more authority conferred upon the circuit court with respect to the recognizance, by reason of the filing of a certified copy of the docket entries of the justice and of the recognizance in the office of the clerk of the circuit court of Madison county than the justice himself had, and the scire facias issued was also without the jurisdiction of the circuit court, and void. Under the evidence the plaintiff was entitled to have his case go to the jury.

The judgment is reversed and the cause remanded.

All concur.