Crump v. People, 2 Colo. 316

Crump v. People

2 Colo. 316 | Colo. | 1874

Beleord, J.

This was an action of debt on a bail bond. From the record, it appears that Hiram Crump, on the 14th day of October, 1872, was brought before O. H. Whittier, a justice of the peace, on a charge of violating the 230th section of the Criminal Code. Such proceedings were thereupon had that Crump was required to enter into bond for his appearance at the ensuing term of the district court, and one of the conditions of the bond was, as appeared from the declaration, that he should keep the peace toward all the people of the territory of Colorado, and particularly toward one Ira Thompson, who had preferred the charge against him before the justice. The breach assigned in the declaration is, that he did not keep the peace toward the people, and that he resumed his threats, etc., against Thompson, whereby the condition of the bond became forfeited.

It appears from the record that on the 8th day of April, a rule was taken on the defendant to plead by the incoming of the court on the 15th. On the 9th a general demurrer was filed, and on the 16th plaintiffs moved for judgment nil dicit, on the ground that no notice of the demurrer was *319filed in the motion book, as required by the 12th rule of the court. The defendants filed their counter motion for leave to enter their demurrer on the motion book, which was denied. And thereupon judgment nil dicit was awarded. The action of the court is especially complained of. If the plaintiffs in error were in default in complying with the rules of court, they cannot be heard here. These rules are established to facilitate business, and to enable attorneys to ascertain just what steps have been taken by opposing counsel. They are established for the further purpose of relieving the officers of the court from the constant inquiries that would be made as to what had occurred in reference to the case during their absence from the room; and of the power of the court to make such rules there can be no question. It is inherent in all courts of record. Snyder v. Buchanan, 8 T. & R. 336; Fullerton v. The Bank, etc., 1 Pet. 604. Objections are taken to the sufficiency of the declaration, and we have carefully considered the same. It is claimed that it contains no averment that the bond taken by Whittier was duly certified by him to the clerk of the district court. The allegation in the declaration is “which said recognizance was then and there taken and acknowledged by the said justice of the peace, and afterward, to wit, on the twenty-fifth of January, in the year of our Lord one thousand eight hundred and seventy-three, by him, the said justice, filed in the office of the clerk of the said district court, and became a matter of record therein,” etc. We think the allegation sufficient. Champlain v. The People, 2 Comst. 82.

It is further claimed that the court erred in allowing final judgment to be entered in the cause for the penalty of said recognizance without a writ of inquiry, and without evidence and assessment of damages by a jury. It may be said that in legal estimation a penalty is a debt. In this case the amount of the debt is stated. No computation or assessment was required. There could be nothing for a jury to determine.

So, too, we apprehend that a right of action accrued to *320the people, on the bond, as soon as there was a breach of the condition, and the district attorney could not be required to wait until after the term of court at which Crump was bound to appear before he could commence suit, for the reason that one of the conditions of the bond was that Crump would deport himself peaceably toward Thompson, from the time he executed the bond until the final order in the district court was had. When he failed to do this, the condition was broken, and the right to bring the action for that breach had accrued.

The judgment is

Affirmed.