165 Mo. App. 370 | Mo. Ct. App. | 1912
This is a scire facias proceeding on a forfeited recognizance in appeal, as for bail. McDonald, the surety on the recognizance, demurred to the scire facias, and upon this demurrer being overruled, he refused to further plead thereto. Thereafter, the court entered final judgment awarding execution.
It appears that one Gildersleeve, principal in the recognizance on which McDonald was surety, was engaged in the business of a ticket broker in St. Louis, and plaintiff, Chicago, Burlington & Quincy Railroad Company, instituted a proceeding against him in equity, to the end of restraining his further prosecution of that calling. This injunction suit was tried in the circuit court of the city of St. Louis, and defendant therein, Gildersleeve, was restained in accordance with the prayer of the bill. By the decree in the injuntion suit, Gildersleeve was forbidden to thereafter sell or deal in passenger tickets of plaintiff, Chicago, Burlington & Quincy Railroad Company. Afterwards, Gildersleeve was cited to appear before the circuit court and show cause why he should not be punished for contempt for violating- the restraining order above mentioned. Upon his appearing in court and an examination being had touching the matter, he was adjudged in contempt and sentenced to serve fifteen days in the common jail of the city of St. Louis for having willfully violated the injunction. From this order and judgment sentencing him to jail, Gildersleeve prosecuted an appeal to this court, but the case was thereafter transferred from this to the Supreme Court for final determination. In connection with the appeal from the judgment sentencing Gildersleeve to jail, and for the purpose of obtaining a supersedeas with respect to that judgment, Gildersleeve, together with McDonald, his surety, entered into and executed the recognizance in appeal involved here. This recognizance executed by Gildersleeve and his surety, McDonald, is in the penal sum of $500 and is by. its terms payable to plaintiff in the injunction suit, the Chicago, Burlington & Quincy Railroad Company. It is the usual form of recognizance provided for in section 2042, Revised Statute 1909, pertaining to appeals in civil cases, and,
It is argued, first, that the summary proceeding of forfeiting the recognizance and subsequent scire facias thereon may not be sustained for the reason such forfeiture and scire facias are not authorized as to a recognizance given in appeal in a civil suit, and, second, that at any rate the surety may stand on the letter of his bond and may not be required to pay the penalty to the state of Missouri when the obligee of the recognizance is the Chicago, Burlington & Quincy Railroad Company. It is to be conceded that our code mates no provision for the summary forfeiture of recognizances in appeal in civil cases and the subsequent issue of scire facias thereon. It is to be conceded, too, that the appeal of Gildersleeve from the judgment sentencing him to jail for contempt involved a civil controversy, for such has been expressly decided by the Supreme Court,
It is said the test by which the character of the punishment, whether criminal or civil, is to be determined in such cases, is to ascertain whether the contemnor may undo his wrongful act by proceeding to comply with the order of the court, or whether his wrongful act is a past event affirmatively violating an order forbidding such conduct which he may not undo if he would. For instance, where the court orders one to do a particular thing and he nevertheless declines or refuses, the contempt is regarded as a civil one when a sentence of imprisonment is had — -that is, the punishment is regarded as civil in character, for it is only coercive to the end of rendering compliance with the order. In such cases, the contemnor “carries the keys
Obviously, at the time Gildersleeve and his surety, McDonald, executed the recognizance in appeal, Gildersleeve stood under sentence of a punitive character for a definite term of fifteen days ’ service in jail. This, together with the payment of the costs of the contempt proceeding, was the entire judgment. Though the appeal then prosecuted was civil in character, so as to entitle it to be heard in the -appellate courts under
But it is said the scire facias writ runs in the name of the state and requires McDonald, the surety, to show cause why the state of Missouri should not have execution for the penal sum confessed, whereas the obligee in the recognizance is the Chicago, Burlington & Quincy Railroad Company. The argument is, that the surety may stand on the strict terms of his bond and is not required to respond to one other than the obligee nominated therein. It is said that because of this alone the demurrer should have been sustained. The general proposition advanced as to the surety’s right may he conceded to be true, but in disposing of this question, we are not confined to what appears on the face of the writ, for, on demurrer to such a writ, the entire record, including what appears on- the files and entries of the court, is under review. In other words, though the writ itself he in some respects informal, it may suffice if from an inspection of the entire record it appears a proper course has been pursued with full notice to defendant and no injustice done. [See State v. Randolph, 22 Mo. 474; State v. Potts, 60 Mo. 368; 19 Enc. Pl. & Pr. 317.] The object of the writ of scire facias is to compel the bail to show cause, if any he has, why plaintiff should not have execution against him. [19 Enc. Pl. & Pr. 295; Tidd’s Practice 1100; Blackstone’s Comm. 417.] On looking into the record, it appears that both the forfeiture and the judgment awarding execution were had in the name of the Chicago, Burlington & Quincy Railroad Company, obligee in the recognizance, to the use of the state of Missouri, and, therefore, the requirment in the writ itself for McDonald to show cause why the state of Missouri should not have execution reckons with the fact that, under the Constitution, the state was the proper party to collect the forfeited penalty for the school fund.