38 Ind. 32 | Ind. | 1871
Suit by the State of Indiana against Eli Kessler, Joseph Breen, and the appellants, Hannum and Dewey.
The complaint states, that, on the 21st day of September, 1869, Kessler, Breen, and the appellants executed their certain writing obligatory to the State of Indiana, a copy of which was filed with the complaint, by which they ackhowl
An exhibit filed with the complaint is a copy of the bond sued on, in which the said Kessler, Breen, and the appellants, Hannum and Dewey, acknowledge themselves to be indebted to the State of Indiana in the sum of six hundred dollars each, on the following conditions: That whereas, the said Kessler and Breen had been arrested on a warrant issued by D. P. Helser, a justice of the peace in and for said county, on the charge of grand larceny, and the examination' of said cause having been continued to Septémber 25th, 1869, at 10 o’clock A. M., if the said Kessler and Breen should be and appear at said time, etc., then said bond should be void, etc.
There was a return of “not found” as to the defendants Kessler and Breen.
The appellants, Hannum and Dewey, filed an answer, which was a general denial of each and every allegation in the complaint.
Trial by the court and finding for the plaintiff in the sum of six hundred dollars. Motion by appellants for a new trial for the following reasons: First, the court erred in overruling the appellants’ demurrer to the complaint; second, the finding and decision of the court were contrary to law; third, the finding and decision of the court were not sustained by sufficient evidence; fourth, the finding and decision of the court were unsupported by the evidence.
Motion by the appellants in arrest of judgment, which motion was overruled by the court, to which the appellants excepted.
Judgment on the finding, and appeal by Hannum and Dewey to the Supreme Court.
On the same day, the appellants filed their bill of exceptions, containing all the evidence, by which it appears from •an agreed statement of the facts given in evidence, that on the 21st day of September, 1869, at the office of one D. P. Helser, a justice of the peace in Deer Creek township, in said county, the defendants, Kessler and Breen, as principals, and the appellants, Hannum and Dewey, as sureties, executed the following writing obligatory to the State of Indiana, to wit:
“We, Eli Kessler, Joseph Breen, J. C. Hannum, and Henry S. Dewey, of the county of Carroll and State of Indiana, are held and firmly bound unto the State of Indiana in the penal sum of six hundred dollars each, for the payment of which we bind ourselves, executors, and administrators. Sealed and signed this 21st day of September, 1869.
“The condition of the above obligation is such that, whereas the above bound Eli Kessler and Joseph Breen have been arrested on a warrant issued by D. P. Helser, J. P., in said county, on the charge of grand larceny, and the examination of said cause is continued to September 25th, 1869, at ten o’clock, A. M. Now, if the said Kessler and Breen shall be and appear before the said justice at said time of examination, and not depart therefrom without leave, then this bond shall be void, else to remain in full force and virtue in law.
[Signed] “E. Kessler, [Seal]
“Joseph + Breen, [Seal]
“J. C. Hannum, [Seal]
“Henry Dewey.” [Seal]
The appellants have assigned the following errors: First, that the court erred in overruling the motion of the appellants for a new trial; second, that the court erred in finding for plaintiff; third, that the court erred in overruling motion in arrest of judgment; fourth, that the complaint does not state facts sufficient to constitute a cause of action.
The second assignment of error presents no question for our decision, it being embraced in the first error assigned. The failure of the appellants to demur to the complaint in the court below does not deprive them of the right of assigning for error in this court, that the complaint does not
A very carefully prepared brief has been filed by the counsel for appellants, in which several objections involving the validity of the judgment below are discussed with clearness and force. The questions discussed arise under all three of the errors assigned; we shall therefore consider the objections without reference to the order in which they are presented.
The first objection urged is, that it is not averred in the complaint, and was not shown upon the trial, that any affidavit was ever filed before the justice of the peace charging Kessler and Breen with having been guilty of any crime. There was no certified transcript of the justice of the peace filed with the complaint or read in evidence. It was said by this court in the case of The State v. Gachenheimer, 30 Ind. 63, “ Indeed, we regarded it as too familiar a proposition to justify discussion, that the proceedings of a court of inferior and limited jurisdiction cannot be recognized as valid, unless the facts necessary to give the jurisdiction in the particular case are affirmatively shown to exist, and that a recognizance, a debt of record, taken by a justice of the peace is within the rule.” See the same case reported in 28 Ind. 91. Hawkins v. The State, ex rel. Read, 24 Ind. 288; Bridge v. Ford, 4 Mass. 641; Commonwealth v. Downey, 9 Mass. 520.
There is nothing appearing in the record to show' that the justice had acquired any jurisdiction of the case; and therefore he had no power to take the recognizance. The objection is well taken.
In the case last cited, this court say: “The action, under the statute, is brought on the recognizance, alleging a forfeiture thereof. It is the recognizance and its forfeiture that gives the right of action, and not the fact that it is recorded. The right of action is complete when the recognizance is forfeited. It was so held in Patterson v. The State, 12 Ind. 86, to which we adhere.”
An examination of the above case will show that it was contended that no right of action existed until there had been a forfeiture of the recognizance, and certificate of such forfeiture was indorsed by the justice on the recognizance, and the recognizance, so indorsed, filed and recorded in the clerk’s office. The court held that the only object in filing the recognizance and recording it in the clerk’s office was to create a lien on the real estate of the recognizors; and the words in the above quotation, “and not the fact that it is recorded,” had reference to recording the recognizance in the clerk’s office, and not to the entry in the justice’s docket of the forfeiture. But in this it is not alleged or shown that there was any forfeiture. There can be no action without a forfeiture on which to base the action. Votaw v. The State, 12 Ind. 497.
It is next claimed by the appellants, that upon the facts agreed upon, the justice had no power to have the recognizors called and a forfeiture taken of the bond. We are of the opinion that the position is well taken. A justice of the peace is required to have an office. When a justice issues a summons, he is required to specify the time and place at
All the proceedings of courts should be open and fair, and free from any suspicion that any advantage has been taken. This cause was submitted'to the court below upon an agreed statement of the facts, and hence we can indulge in no presumptions in favor of the finding of the court below. It was said by this court in the case of I. & C. R. R. Co. v. Kinney, 8 Ind. 402, that “where a cause is tried upon an agreed case in writing, an appellate court has neither more nor less evidence on which to act than the inferior court had; and they must weigh it as if they were trying the case originally,”
The judgment is reversed, and the cause is remanded, with directions to the court below to order a new trial, and for further proceedings in accordance with this opinion.