28 Ind. 91 | Ind. | 1867
— Suit by the State against Gachenheimer and Blount, on a forfeited recognizance taken by a justice of the peace.
The amended complaint alleges that on the 27th of September, 1865, Gaehenheimer was confined in the jail of the county by virtue of a mittimus issued by a justice of the peace, upon a charge of obtaining goods by false pretenses; that in order to procure his release from prison he was taken before the justice, and, with the defendant Blount,
(Signed,) Jacob Gachenheimer, [Seal.]
Henry F. Blount. [Seal.]
“Taken and approved by me, this 27th day of September, 1865. James F. Walker, Justice.”
The complaint further alleges that Gachenheiiner failed to appear before the justice aecox’ding to the condition of said recognizance; that thei’eupon the justice declax’ed the same fox’feited; and that on the 11th day of January, 1867, (after the eommexxcement of the suit,) said justice indorsed a certificate of said forfeitux’e upon the recognizance, and filed the same with the clerk of the Vanderburgh Circuit Court, who then and there duly recorded the same. A copy of said certificate and a certified transci’ipt of the proceedings befox’e the justice ax’e made a part of the complaint. It appears by the transcript that an affidavit was filed before the justice, chax’ging Gachenheimer with having obtained goods by false pretenses; that the justice thereupon issued a wax’rant for his arrest upon said charge; that he was arrested and bx’ought before the justice, when the cause was continued until the 3d day of October then following, and the defendant required to enter into a recognizance, with surety, ixi the suxn of $1,200, for his appeax’ance at the time and place of trial, and'that the I'ecognizaxxce in suit was given in pursuance of said order; that Gachenheimer failed to appeax’, and the recognizance was duly declared to be forfeited.
The defendants then filed an answer of four paragraphs: 1. General denial. 2. That the justice had no authority to take the bond, as no affidavit or accusation was ever filed before him charging any crime against Gachenheimer. 3. Alleging that the only charge ever preferred against Gachenheimer, as a foundation for the pretended prosecution, was an affidavit charging that Gachenheimer, for the purpose of obtaining certain goods, falsely and fraudulently pretended that a certain tract of land, which ho then and there conveyed by deed of general warranty to the-prosecutor, one Weis, was free of incumbrances, except as to a recorded mortgage for $300, whereas there was another duly recorded mortgage upon the same for $1,200, and that the affidavit was lost. 4. That the bond or recognizance is void, because the affidavit, which was the foundation of the prosecution in which it was taken, charges no crime.
Demurrers were sustained to the second, third and fourth paragraphs. The issue made by the general denial was tried by the court, which resulted in a finding for the State. Motion for a new trial' overruled, and judgment for the amount of the-recognizance. The defendants appeal.
It is insisted by the appellants that the making of the recognizance and the forfeiture thereof did not constitute a right of action until a certificate of-' the forfeiture was indorsed by the justice on the -recognizance$ and the recognizance, so indorsed, filed and recorded in the clerk’s office, which was not done prior to the commencement of the suit,
The recognizance was taken under section 14 of the justice’s act. 2 G. & H. 639. The next succeeding section, (15) provides that, “ on the forfeiture of any recognizance taken by virtue of the last preceding section, the justice shall indorse thereon his certificate, stating, in substance, that such prisoner did not appear in discharge of such recognizance, and abide by the judgment of the court; and shall forthwith file such recognizance, so indorsed, with the clerk of the Circuit Court, if the offense charged was a felony, or with the clerk of the Court of Common Pleas, if the offense charged was a misdemeanor; and such clerk shall forthwith record, in the order book of his court, such recognizance and certificate of forfeiture, and note the same on the judgment docket, and such record shall have the same force and effect as other recognizances; and such certificate, or the record therpof, shall be presumptive evidence of the forfeiture of such recognizance.” The force and effect intended to be given to the record of such a recognizance, and the certificate of forfeiture, is found in the 12th section of the same act, which, in reference to recognizances taken by a justice of the peace for the appearance of a party accused before the Circuit or Common Pleas Coui’t, to answer to a criminal charge, provides that such recognizance, together with a transcript of the proceedings and all papers in the case, shall be forthwith filed by the justice with the clerk of the Circuit or Common Pleas Court, who shall docket such cause for trial, and record such recognizance forthwith on the order book of such court, and enter the same on the judgment docket; and from the date of such entry, it shall operate as a lien upon all lands of the parties thereto in the county; and any judgment afterwards had upon it shall have relation back to the date of such entry. Construing these sections together, it seems obvious that the object in requiring the justice to indorse a certificate of the forfeiture on a recog
Another objection to the complaint is, that it does not allege that any affidavit had been filed before the justice to give him jurisdiction of the case, and to authorize him to take the recognizance. The justice’s transcript, which is made a part of the complaint, shows that an affidavit was filed charging Gachenheimer with having obtained goods by false pretenses; that he was arrested on a warrant issued by the justice, and brought before him on said charge, and that the recognizance was entered into for his appearance on a subsequent day for trial. . These facts are sufficient to show that the justice had jurisdiction. . ,
The matters set up in the second, third, and fourth paragraphs of the answer, so far as they are material, would necessarily arise, or might be given in evidence, under the general denial. They might have been stricken out on motion; and if the court ei’red in sustaining the demurrers to them, it was a harmless error, and cannot reverse the judgment.
The refusal of the court to grant a new trial, because the finding was contrary to the evidence, remains to be noticed. A bill of exceptions contains all the evidence given in the case. It consisted simply of the original recognizance and the justice’s certificate of forfeiture indorsed thereon, and the record of said recognizance and certificate in the Circuit Court. The recognizance contains no recital that an affidavit had been filed before the justice charging Gachen
In Hawkins v. The State, 24 Ind. 288, we held that in a suit upon a forfeited recognizance taken by a justice of the peace, for the appearance of the accused to answer a charge of felony in the Circuit Court, the facts showing the authority of the justice to take the recognizance must be shown on the trial. In the case now under consideration, the evidence given to the court does not show that the justice had acquired jurisdiction of the case, in any manner, under the statute, so as to authorize him to take the recognizance, and the finding should therefore have been for the defendants, and the court erred in over-ruling the motion for a new trial.
The judgment is z-eversed, and the cause remanded for a new trial.