129 Ky. 477 | Ky. Ct. App. | 1908
Opinion of the Court by
— Reversing.
Prior to October, 1906, one Doug Plays was indicted in the Leslie circuit court, charged with a felony, and his bail fixed at $500. Appellants, James Hargis, Ed Callahan, and S. B. Stidham, executed the usual bond .for the appearance of Doug Hays at the October term
As reasons- why appellants should not be compelled to pay this judgment they presented the following: That they and Doug Hays resided in Breathitt county, about 45 miles from Hyden, in Leslie county; the place where the judgment was rendered; that shortly after the bail bond was executed Doug Hays went to the state of Minnesota on a visit to his brother, who resided there; that while there Doug Hays and his brother went on a hunting trip, and Doug Hays accidentally shot and wounded himself, and it was impossible for him to appear at the Leslie'circuit court in October in fulfillment of the bond; • that after. he became able to travel he returned to Breathitt county and executed another bail bond for the $1,000. It is made to appear that they failed to attend the Leslie circuit court, which began on the first Monday in February, 1907, for the reason that they did not know that there was a February term of that- court; that they believed that the term began on the third Monday in March, 1907; that they relied upon the “Bradley & Gilbert Company” court calendar for the year 1907, which fixed the term for the Leslie circuit court on. the third Mondays in March, Juné, and November; that they did not know of the change fixing the terms of the Leslie circuit court to begin in February, May, and October. They filed with their pleadings the court
Appellee’s counsel contends that appellants, the sureties of Doug Hays, acted at their peril when they permitted him to leave the State to visit his brother, and it was no defense to the action to recover the amount of the bond that Hays was accidentally shot and thereby prevented from appearing at the October term of the Leslie circuit court, and refers to the cases of Starr v. Commonwealth, 7 Dana, 243, Alguire v. Commonwealth, 3 B. Mon. 349, and Withrow v. Commonwealth, 1 Bush, 17, and other cases of similar import, as sustaining their position. These cases are unlike the case at bar. The case in 7 Dana, 243, was one where an infant was defendant in the indictment, nnd he failed to appear to answer it, and the sureties on the bail bond defended upon the ground that the infant’s mother had taken him .out of the State and Lept him away until after the bond was forfeited. The court adjudged that this defense was insufficient. The case in 3 B. Mon. 349, was where the defendant had not appeared because he was imprisoned by the State authorities in the city of Louisville, Ky. This fact was pleaded as a defense to the forfeiture of the bail hond, and was held insufficient, because it was defectively pleaded. The case in 1 Bush, 17, was one where one Catlin, who was charged with murder in Marion county, Ky., was arrested and gave bond, and then went to the State of Indiana, where he was arrested and imprisoned for the violation of the law in that state. While thus imprisoned in the state of Indiana, his bail bond was forfeited for his nonappear
The second proposition presented by appellee’s counsel is that the judgment was rendered in February, 3907, and this action was not instituted to set aside the judgment-until the 31st day of May of that year, and that one court had passed between the date of the judgment and the institution of this action, and the court was without power to vacate or modify it, except upon the grounds set out .in section 518-of the Civil Code of Practice, which it is claimed are not presented in this proceeding. This contention of appellee’s counsel is correct, except the last proposition, to the effect that appellants present no grounds for vacating or modifying the judgment under section 518,
We are of the opinion that the lower court erred in sustaining a demurrer to appellants’ pleadings. The judgment is reversed and remanded for trial; and if appellants’ contentions are found to be true the court will set aside the judgment and render judgment according to the justice of the ease, as provided in section 98, Cr. Code Prac., which is as follows: “If, before judgment is entered against the bail the defendant be surrendered or arrested, the court may, at its. discretion, remit the whole or part of the sum specified in the bail bond.”