93 So. 372 | Ala. Ct. App. | 1922
This is a common-law certiorari proceeding, and seeks to quash an order or judgment of the judge of the county court of Chilton county whereby judgment was rendered against the obligors, petitioners and appellants here, who, as sureties, entered into an undertaking for the appearance of one J.R. Busby, the principal, at the county court of Chilton to answer a charge against him pending in said court for a violation of the prohibition laws. No question is raised but that the principal failed to appear at said court, as he had obligated to do. There is absolutely nothing in the record to substantiate the contention that the indictment subsequently returned by the grand jury of Chilton county for a like offense as that pending in the county court against the principal in the undertaking was for the same offense as that charged in the affidavit in the county court, and for which offense the sureties bound themselves for the appearance of the defendant, but, if so, this fact could have in no wise relieved the sureties of their undertaking that the principal should appear at the Chilton county court to answer the charge there pending against him. No question is raised but that the recognizance was taken by an officer authorized by law to take and approve it, and, this being so, the sureties cannot escape liability for the default of their principal by questioning the sufficiency of the affidavit. Consequently there is no merit in the contention of the appellants that the affidavit contained both a felony and misdemeanour charge. Peck v. State,
The plea of the petitioners that there was a discontinuance of the cause against the principal in the county court, if conceded, cannot avail the petitioners, for it is clear form the allegations of the petition that the principal did not appear at the October term of the county court, as the obligation bound him to do, neither was there a discontinuance of the proceedings in the county court to declare a forfeiture of the undertaking. A scire facias on a forfeited recognizance is a civil cause, and is not discontinued by the unexplained failure of the court to take action on it for one or more terms. Hunt v. State,
To authorize us to quash the proceedings in the county court, the invalidity of the proceedings must appear from or by an inspection of the record itself. Benedict v. Board of Revenue, Mobile Co.,
No error appearing in the record, the judgment refusing to quash the proceedings in the county court is hereby affirmed.
Affirmed.
