19 Pa. Super. 1 | Pa. Super. Ct. | 1902
Opinion by
This was an action of assumpsit upon a recognizance of bail taken and acknowledged before a magistrate of the city of Philadelphia conditioned for the appearance of Clarence Meeser “at the next term of the court of oyer and terminer and quarter sessions of the peace for the city and county of Philadelphia to be holden on the first Monday of December, 1899,” etc. The particular charge upon which the defendant was arrested was “conspiracy to procure fraudulent votes, and to violate the election laws of Pennsylvania and procuring fraudulent votes.” The statement alleged: “ And the said recognizance was, on the 21st day of December A. D. 1899, adjudged and decreed to be forfeited (as will more fully appear by reference to the records in the office of the clerk of the said court) and the penalty thereof became due and payable and has not been paid.” Judgment was entered for want of a sufficient affidavit of defense.
1. Counsel for appellant do not claim that, under the laws applicable to Philadelphia and the rules of the court below, an action of assumpsit will not lie in that court, nor that an affidavit of defense is not required to prevent judgment in a proper case. Their first contention is, that the statement does not contain a particular reference to the alleged record sued on, and is, therefore, insufficient to support the judgment. As the statement contains an exact copy of the recognizance sued on and a reference to the place where the record of the forfeiture of it may be found, namely, “ the office of the clerk of said court,” the reasonable construction of the averment is, that the record sued on was in its proper place in the records kept by the clerk of the courts of quarter sessions, and oyer and terminer. The record was sufficiently identified and the place where it cotild be found was sufficiently designated to inform the de
2. The second point urged by the appellant is; that the recognizance was void, because conditioned for the performance of an impossible act, namely, to appear at the next term of “ the court Of Oyer and terminer and quarter sessions of the peace,” a court whieh has no existence. The fact that the offense with which he was charged might be tried in either court made it proper to bind the aécused tó appear at the liext term of the courts of oyer ánd terminer and general jail delivery and quarter sessions of the peace. And, while the form of the ffeco'g'hizance is inaccurate, in that the singular instead of tlie plural noun was used, it is not so inaccurate ás tú admit of any doubt that this was what waS meant, or that the accused and his surety so understood the obligation. The objection has little, if any more force than would an objection that the full title of each court was not stated. The suggestion that it was impossible for the defendant to appear at two courts at the same timé is equally lacking in merit, because the terms of both courts begin and end at thé same time and are held in the same place, the judge presiding sitting as a judge of the court Of oyer arid terminer or as a judge of the court of quarter sessions according to the nature of the case called for trial. It seems to hs that the case is plainly distinguishable from Commonwealth v. Bolton, 1 S. & R. 328.
3. The third and fourth points insisted upon by the appellant’s eohnsel may be considered together. Before stating the question we deem it important to call attention to certain facts, which, as wé view thé affidavit of defehse, milst be taken ás admitted. The statement avers, (a) that the íéeognizanee was adjudged and decreed to be forfeited oh December 2L 1899, and (5) that this appears by the records in thé office of the clerk of thé eoürt. Neither of these allegations is denied ill the affidavit Of defense, and as to the first there was no attempt at denial. True, the affidavit contains án averment that
But it is urged that the court had no jurisdiction to adjudge the forfeiture because the recognizance was not of record. The averment of the affidavit of defense relative to this matter is that the magistrate “ did in fact return the same to the district attorney of said county and the recognizance was not returned to the clerk of said court or filed in said court prior to said forfeiture, and not until suit was brought thereon.” It is to be observed that it is not alleged that the recognizance, which, as we have said, is sent up as part of the record, was not actually in court at the time the forfeiture was declared and the words, “Dec. 21/99. Recog. of deft, and surety forfeited,” indorsed . upon it. What is the presumption in that regard ? Are the averments of the affidavit above quoted sufficient to rebut the presumption that it was actually in court, if in the absence of those averments there would be such presumption ? If not sufficient, was the omission to mark the recognizance filed and to note that fact on the quarter sessions docket (which ought always to be done) such irregularity or defect as would have warranted the court in treating the adjudication of forfeiture as a nullity in an action upon the recognizance ? The general rule, as to what is to be presumed in actions upon forfeited recognizances in criminal cases was thus stated in Fox v. Commonwealth, 81* Pa. 511: “ The entry of the forfeiture of the recognizance stands for proof of all the steps necessary to complete the forfeiture. Hence we must take it for verity that the defendant and his bail were duly called and did not appear' or answer. In courts of justice omnia prsesumuntur rite esse acta.” This rule has been applied in numerous cases amongst which may be mentioned Shriver v. Commonwealth, 2 Rawle, 206, Rhoads v. Commonwealth, 15 Pa. 272, Pierson v. Commonwealth, 3 Gr. 314, Mishler v. Commonwealth, 62 Pa. 55, Foulke v. Commonwealth, 90 Pa. 257, Commonwealth v. Oblender, 135 Pa. 530, Commonwealth v. Basendorf, 153 Pa. 459, and Commonwealth v. Flomenhaft, 3 Pa. Superior Ct. 566. The case of Scully v. Kirkpatrick,
But if it Werb otherwise, it would profit the appellant nothing ; because, by going outside the record, it would appear that he and others became bail for the appearance, etc., of five defendants, who are now fugitives from justice, and have neither made, nor offered to make restitution for the crime of which they were duly convicted, and that the only ground On which appellant claims relief is a bald technicality, utterly destitute Of merit.” We do not cite this casé as one that controls the decision of the case at bar, but in view of the similarity of the question raised we think it is pertinent. The case most closely resembling the present is Fox v. Commonwealth, supra. Theré, the commonwealth declared on a recognizance “ as by the record of the Said recognizance, remaining in the said court here, more fully appears.” The defendant pleaded nul tiel record, to which the commonwealth replied: “ That there is such record of the said recognizance remaining in the said court, as the said plaintiff hath above in his said declaration in that behalf alleged. And this said plaintiff is ready to vérify by the said record.”
Judgment affirmed.
