Coleman v. State

10 Md. 168 | Md. | 1856

Mason, .1.,

delivered the opinion of this court.

It appears from the record in this case that Jesse Coleman, pne of the appellants, was in the jail of Allegany county on the 26th of February 1853, under the charge of “having stolen goods in his possession, ’ ’ find a recognizance was then entered into by the appellants before a justice of the peace, conditioned for the appearance of said Jesse “at the county court of said pounty, to be held on the —— day of April next ensuing, then and there to answer such charges as may be alleged against him for and concerning the stolen ¿oods found in his premises.”

This recognizance was returned to the circuit court for said pounty on the 22nd of October 1853, and forfeited on the 3rd day of November 1853.

Upon this recognizance so forfeited a scire facias was issued by the State against the appellants, to which they appeared and filed a general demurrer. The court overruled the demurrer, and gave judgment for the State, and from this judgment the appeal was taken.

A recognizance to appear before a court which has no existence, and upon no fixed day, is clearly void. The impossibility of complying with such conditions is the reason.

But it is supposed that these objections could not be taken advantage of upon a scire facias, because the recognizance having been regularly forfeited, these questions were concluded by the forfeiture, which was a judgment of a court of competent jurisdiction.

It is true the principle, is well settled, that any defence which could have been pleaded to the original suit, cannot be relied on afterwards in a scire facias to revive the original judgment. But this principle cannot apply to a case like the present, because the recognizance being absolutely void from the beginning, the defendant was not obliged to answer to it, and assign reasons why it should not be forfeited. H e was required by the recognizance to appear in the county court to answer, and not in the circuit court. The circuit court had no jurisdiction to forfeit a recognizance which was not returnable to that court. The defendant not being obliged to answer in the circuit court, was not obliged to plead or make any defence to the proceeding in that court. It cannot therefore, under such circumstances, be said that the defences now relied on could have been pleaded to the original proceeding. The writ of scire facias was the first legal process issuing out of the circuit court which the defendant was bound to notice. He finds the judgment upon which it was based to be utterly void, and he is at liberty to show it, being the first opportunity, in contemplation of law, which he had of doing so.

Judgment reversed, but no procedendo.