11 N.W.2d 55 | S.D. | 1943
Corlyss T. Willadsen entered a plea of guilty to an information charging him with the crimes of wife and child desertion, and was sentenced to serve one year in the county jail. Thereafter he applied to the court *415 for an order suspending the execution of his sentence. In granting the order, the court imposed certain conditions to which the defendant agreed in writing. The pertinent portion of that agreement reads: "I further agree that I will pay or cause to be paid to Elna Willadson, my wife, of Sioux Falls, South Dakota, the sum of Forty-five Dollars ($45.00) per month, commencing on the 1st day of June, 1938, and continuing to be payable on the first day of each and every month thereafter, this agreement to be in full force and effect until the surviving child of my marriage with said Elna Willadson shall attain the age of sixteen years, and I further agree to furnish good and sufficient bond in the penal sum of One Thousand Dollars ($1,000.00) as security for the performance of the terms and conditions of this agreement."
Prior to the entry of the order suspending the execution of the sentence, Corlyss T. Willadsen, as principal, and his father, P.H. Willadsen, as surety, executed and delivered their agreement in writing as follows:
"Whereas, on the 26th day of May, 1938, the above named defendant, C.T. Willadson, upon a plea of guilty to an information charging him with the crime of Wife and Child Desertion, was duly convicted and sentenced to imprisonment in the County Jail of Minnehaha County, South Dakota, for the period of One (1) year, by the above named Court; and
"Whereas, said Court has this day suspended the execution of said sentence of imprisonment upon conditions set forth in an Agreement and Order of Suspension among which conditions is a provision that the said C.T. Willadson will pay and cause to be paid to Elna Willadson, his wife, of Sioux Falls, South Dakota, the sum of Forty-five Dollars ($45.00) per month, commencing on the 1st day of June, 1938, and continuing to be payable on the first day of each and every month thereafter until the youngest living child of said marriage shall have attained the age of sixteen years, and as security for the performance of the terms and conditions providing in said Agreement and Order of Suspension *416 with respect to the payment of said monthly payments, will execute and deliver a good and sufficient bond in the penal sum of One Thousand Dollars ($1000.00) to be approved by this Court and conditioned upon the faithful and prompt payment of said sum of Forty-five Dollars ($45.00) on the first day of each and every month hereafter;
"Now, therefore, in consideration of the premises, the undersigned, C.T. Willadson, as principal, and P.H. Willadson, of Sioux Falls, South Dakota, as surety, do hereby jointly and severally undertake, promise and agree to and with the County of Minnehaha, a body politic of the State of South Dakota, in the penal sum of One Thousand Dollars ($1000.00) for the payment of which, well and truly to be made, we hereby jointly and severally bind ourselves, our heirs, executors and administrators, firmly by these premises, that the said C.T. Willadson will pay or cause to be paid the sum of Forty-five Dollars ($45.00) per month, commencing on the 1st day of June, 1938, and continuing to be payable on the first day of each and every month thereafter until the youngest living child of said marriage between the said principal, C.T. Willadson, and Elna Willadson, his wife, shall attain the age of sixteen years."
On the 18th day of October, 1940, after the expiration of the term of the sentence, the court entered a further order discharging and releasing Corlyss T. Willadsen from any further obligations thereunder. Payments were made to Elna Willadsen, the wife, until and including the 1st day of August, 1941. On August 4, 1941, Corlyss T. Willadsen died. Thereupon, and notwithstanding the fact that the deceased principal was survived by children who had not attained the age of sixteen years, the surety, P.H. Willadsen, asserted that he was absolved from liability under the foregoing instrument. In this action a declaratory judgment is sought to resolve the resulting controversy. The trial court held the surety liable and entered judgment for the aggregate of the monthly payments which became due thereunder during the period intervening the death of the principal and the date of that judgment. *417
[1, 2] The initial question for consideration deals with the right of Elna Willadsen, the third party beneficiary, to institute an action in the name of the county promisee for her use. The point that she was without right to use the name of the county in bringing her action was made by defendant by a motion to dismiss filed before answer. The trial court overruled the motion, and error is predicated here upon that ruling.
Whether the county, as a promisee, could bring an action on this instrument, in view of our statute requiring all actions to be brought by the real party in interest, SDC 33.0402, or whether, in view of that statute and of SDC 10.0204, which authorizes an action on a contract by a third party for whose express benefit it was made, Elna Willadsen could maintain an action in her own name (see Hollister v. Hubbard,
Reasoning from the premise that the foregoing instrument is a bail bond, defendant contends that the action should have been dismissed because (1) it was neither alleged nor established that the undertaking had been forfeited, and (2) it was established that the bail was exonerated (a) by the order discharging the principal and (b) by the death of the principal.
[3] At the time of the delivery of the undertaking in question it was provided by § 1472, Rev. Code 1919, as follows: "Upon those contracts of indemnity which are taken in legal proceedings, as security for the performance of an obligation imposed or declared by the tribunals, and known as undertakings or recognizances, the sureties are called bail." And it was further provided by § 1473, Rev. Code 1919: "The obligations of bail are governed by the statutes specially applicable thereto." Predicated on these sections defendant contends the instrument at issue, having been "taken in legal proceedings, as security for the performance of an obligation imposed or declared" by a tribunal, is a bail bond. By the use of the term "bail bond" we understand defendant to mean an undertaking securing the appearance of a principal defendant. The contention, in our opinion, is not supported by the quoted statutes. When these statutes are read in connection with those by which they are preceded, they but reveal an intention to make it clear that the rules there set forth as applicable in the construction of contracts of indemnity were not applicable to undertakings taken in judicial proceedings. To say that the sureties on judicial undertakings "are called bail" is not to say that all such undertakings are bail bonds, i.e., appearance bonds.
These statutes but removed such undertakings from the embrace of the preceding sections, and opened them to construction according to their terms and the special statutes *419
under which they were lodged. This construction of these statutes is implicit in the cited case of Palmer v. Baker,
It follows that in order to determine whether "forfeiture" is a condition precedent to the accrual of a cause of action against the surety or bail on the undertaking in question, or whether such surety was exonerated by the discharge or death of the principal defendant, we must look to the essential nature and terms of the instrument and the particular statute under which it was delivered.
[4] Under the provisions of §§ 4107 to 4112, Rev. Code 1919, one charged with wife or child desertion may be released "after arrest and before trial, or after conviction and before sentence", § 4110, if he will file an undertaking to support the wife or child. These statutes contemplate a forfeiture of the undertaking in case of default and a resumption of the proceedings. § 4111. We must, however, reject defendant's contention that the undertaking under consideration was lodged pursuant to these provisions. Corlyss Willadsen had been sentenced, and these statutes do not invest a court with power to suspend the execution of the sentence. The powers granted by these provisions are only operative "after arrest and before trial, or after conviction and before sentence."
[5-8] By Ch. 126, Laws 1931, enacted pursuant to § 39 of Art. V of the constitution of South Dakota, it is provided: "All Courts, having jurisdiction to try offenses under the laws of this State, and the Judges thereof, shall have power to suspend sentences of persons convicted, for the first time, of crime under the laws of this State during good behavior, subject to such conditions and restitutions as the Court or Judge thereof may impose; provided, however, that such conviction shall have occurred in the Court exercising such power." Through this enactment a court, *420
so long as it retains jurisdiction of the cause, is clothed with power to suspend the execution of a sentence. State ex rel. Conway v. Hughes,
[9, 10] The condition quoted supra and the written agreement of the parties embraced obligations which would outrun the term of the sentence of Corlyss Willadsen. According to the terms of the undertaking its obligation would continue to have force after he would have become entitled to his discharge. See 24 C.J.S., Criminal Law, p. 196, § 1618. The promise was to pay until the youngest child attained the age of sixteen years. The mutual intention *421 thus clearly revealed is binding on the parties unless it can be said that the court exceeded its jurisdiction in imposing so extensive a condition. This we cannot say. The legislature did not place an explicit limitation on the power with which it invested the courts by Ch. 126, Laws 1931, supra, and the only implicit limitation on that power is that any condition imposed must be legal and reasonable. 24 C.J.S., Criminal Law, p. 183, § 1618. Manifestly the condition is not illegal, and in view of the nature of the offense for which sentence was passed, and of its relation to the continuing duty of the husband and parent to provide support for his wife and children, we conclude that it is not unreasonable. We hold that the undertaking was not discharged by either the expiration of the principal's sentence or by his discharge therefrom.
The effect of the death of the principal on the liability of the surety remains for consideration. This question has produced a conflict of authority under bonds filed in bastardy proceedings. Emmons v. Commonwealth,
[11] Contractual obligations which terminate at death *422
are exceptional and not typical. In re Witkind's Estate,
[12] In the instant case, the parties dealt with nothing but the impersonal payment of money. That obligation could be as well performed by a personal representative as by the promisor. The express agreement was to run "until the youngest living child shall have attained the age of sixteen years." It is not without significance that in the undertaking, executed by both principal and surety, the parties agreed that we hereby "jointly and severally bind ourselves, our heirs, executors and administrators, firmly by these premises." We perceive nothing here to indicate an intention that the obligation of the principal should be discharged by his death. See Stone v. Bayley,
For the error pointed out in response to the first assignment considered, the judgment of the learned trial court is reversed.
All the Judges concur. *423