120 P. 10 | Or. | 1912
delivered the opinion of the court.
In the printed brief of the defendants it is stated that, the whole question for consideration on appeal is whether or not the new matter in the answer constituted a good defense; but on the oral argument here the defendants urged that the complaint does not state a cause of action. We will consider these questions in inverse order.
The authority to excuse sureties from the enforcement of their undertaking, in any manner or degree, is thus vested in the court, and as a matter of law the authority of every other officer to do the same thing is excluded. 2 Sutherland’s Stat. Const. (2 ed.) §§ 492, 627; Smith v. Stevens, 10 Wall. 321 (19 L. Ed. 933); Rogers v. Kennard, 54 Tex. 30; Conroe v. Bull, 7 Wis. 408. The statutory duty of the district attorney is to prosecute actions against sureties upon their undertaking after forfeiture. He has neither power to admit to bail, to take bail, nor to exonerate bail. As a matter of law, the defendants well knew the limitations upon the authority of the district attorney, and that the only power to release them from their undertaking was vested in the court, upon proper application to that tribunal. They knew they had no right to rely upon the representations of the district attorney, alleged as a defense in their answer. State v. Clifford, 124 Mo. 492 (28 S. W. 5); Whittington v. Ross, 8 Ill. App. 234. The new matter in the answer constitutes no defense to or release of their obligation upon the undertaking quoted.
“True, some information upon some of these essential averments may be had by reference to the recitals in the copy of the undertaking attached to the complaint and by allegation made a part thereof; but an exhibit to a pleading cannot serve the purpose of supplying necessary ánd material averments.”
“If, without sufficient excuse, the defendant neglect or fail to appear for arraignment, or for trial or judgment, or upon any other occasion when his presence in court may be lawfully required, or to surrender himself in execution*465 of the judgment, the court must direct the fact to be entered in its journal; and the undertaking of bail or the money deposited in lieu thereof, as the case may be, is thereupon forfeited.”
“A judge may exercise out of court all the powers expressly conferred upon a judge as contradistinguished from a court and not otherwise.” Section 958, L. O. L.
A judge, as distinguished from a court, is not authorized to declare a forfeiture, as by Section 1668, L. O. L., that must be done by the court, and the fact authorizing the declaration of a forfeiture must be entered upon the journal. For all that appears, the cause may never have been called for judgment or any situation have arisen where the presence of the defendant Reed in court might be lawfully required.