Baker Manufacturing Co. v. Fisher

35 Kan. 659 | Kan. | 1886

The opinion of the court was delivered by

Horton, C. J.:

The question in. this case is, whether the bail have been exonerated- from the obligation of the undertaking executed by them March 17, 1882. Judgment , was rendered against Knotts & Wallace -on April 8, 1882, and Knotts, who was released at the .time of the execution of the undertaking, has not rendered himself amenable to the process of the court below. It appears that he cannot be found in Sumner county. If the terms of the undertaking solely, controlled, the bail would be charged; but §§ 168, 169 and 170 of the code are very important in the consideration of this question. These sections are as much a part of the undertaking as if their terms were incorporated therein. Section 168 provides: “That the bail may surrender the defendant to the sheriff at any time before the return-day of the summons in an action against the bail;” and section 169 authorizes the arrest of the defendant by his bail, at any time, for the purpose of surrender. Section 170 further provides: “The bail will be exonerated ... by his [defendant’s] legal discharge, or his surrender to the sheriff of the county in which he was arrested.”

On March 22, 1882, the judge of the district court vacated the order of arrest on account of alleged insufficiency of the affidavit upon which the arrest was made. At the time of the vacation of the order of arrest, the plaintiff asked leave to make the affidavit sufficient, by amendment, but' leave was refused, the judge holding that he had no power at chambers to grant leave to amend. To this ruling the plaintiff excepted, and on March 20, 1883 — nearly a year after the discharge of the defendant—filed its petition in error in this court to review such ruling. On September 6,1883, the opinion of this court was handed down, reversing the' ruling of the district court, and remanding the case with instructions to the court to permit the amendment of the affidavit. No stay of the ruling of the district court was obtained by the plaintiff, and from ■ March 22, 1882, until September 6, 1883, the bail had no legal right to arrest or surrender the defendant; the sheriff had no right to hold him even for an instant, and had no right to accept his surrender from the bail; therefore the right to arrest and surrender their principal given by the statute to the bail as their security, was by the statute taken away when the defendant Knotts was discharged, on March 22, 1882. The sureties executed the undertaking signed by them, upon the faith of the provisions of the law that permitted them at any time to arrest and surrender the defendant. The discharge of the defendant, on March 22, 1882, exonerated the bail. At that time the defendant Knotts was entitled to his immediate discharge, and neither the bail nor the sheriff had any custody or control of him. (Duncan v. Tindall, 20 Ohio St. 567.)

The judgment of the district court will be affirmed.

All the Justices concurring.