17 Neb. 73 | Neb. | 1885
This action was originally brought in the district court against one Con. McGee, as principal, and plaintiffs in .error, .as sureties, upon a forfeited recognizance. Defendant in error filed its petition, by the district attorney, alleging substantially that a complaint had been filed before the county judge of Johnson county charging the said McGee with the crime of horse stealing; that a warrant was duly issued by the county judge for his arrest, and that he was arrested thereunder by the sheriff of said county and brought before said county judge, when a preliminary examination was had; that the county judge, after hearing the testimony, found there was probable cause to believe said McGee gjiilty of the crime charged, and he was ordered to enter into a recognizance in the sum of $500 for his appearance “at the first day of the. next term of the district
To this petition plaintiffs in error demurred upon the grounds: 1. That the court had no jurisdiction of the persons of the defendants; 2. That there was a defect of parties plaintiff j and 3. That the petition did not state facts sufficient to constitute a cause of action. The demurrer was overruled. Plaintiffs in error refused to answer further, but elected to stand upon their demurrer. Subsequently the state dismissed the action as to McGee, and judgment was rendered against plaintiffs in error, who bring the cause into this court by proceedings in error for review.
The questions which are presented by plaintiffs in error will be noticed in their order. The first is, that the recognizance “required the appearance of the accused before the district court of said Johnson county on the 3d day of October, 1882,” and not on the first day of the next ensuing term thereof as required by law, and that the recognizance is therefore void on its face, as it does not appear from the face of the recognizance that the third day of October was the first day of the term. The petition alleges that he was required to appear on the first day of the term of court next ensuing. The 3d day of October was the first day of the ensuing term. The court being in session could take judicial notice of the date of its session. While the law requires a defendant to be required to appear and answer to’ the charge.on the first day of the next ensuing term (sec.
The next point presented is, that the recognizance was insufficient to constitute a cause of action against McGee and was dismissed as to him for that reason; that the recognizance upon its face only binds the sureties (plaintiffs in error) and does not bind the accused. The record fails to show why the action was dismissed as to McGee, but it does show that the dismissal was entered upon the motion of defendant in error after the overruling of the demurrer of plaintiffs in error. However that may be, the recognizance shows upon its face that he did sign it, the only objection being that his name was not written in the body of the instrument. It was not necessary that the names of any of the obligors should be so written.
“The character of the instrument, the obligation which the parties respectively assume, and their relation to each other are all apparent from a reference to its terms alone. There, is no ambiguity or want of certainty in any essential particular,” and the signatures of the obligors at the foot of the instrument were sufficient to render them liable thereon. Stewart v. Carter, 4 Neb., 566. McGee was liable on the face of the recognizance, and a judgment could have been rendered against him for the amount named therein.
It is next urged that the recognizance does not show' upon its face that the officer before whom it was taken was the same officer before whom the preliminary examination was had, nor that the person before whom the recognizance was taken was authorized or empowered to take the same, nor that the official seal of the county judge was attached to it. To the first of these objections it must be answered that the petition alleges the fact and the demurrer admits it. As to the second, it appears to have been taken in
As to, the third'objection, no seal was necessary. Had the recognizance been entered in the docket of the county judge it would have been sufficient.
It is next urgedx that as the copy of the recognizance is not formally “made a part” of the petition, simply attached and referred to as “ A,” we must look to the petition alone for the statement of the facts necessary to constitute a cause of action. As the allegations of the petition have been substantially given, we need not repeat them here. They were sufficient. All the essential facts were alleged.
The judgment of the district court is affirmed.
Judgment affirmed.
