246 P. 953 | Mont. | 1926
The district court and Judge Ford had jurisdiction to admit Craig to bail. The jurisdiction, the power, was general in character. Any error or mistake or inadvertence (if such there were) committed in accepting the deposit, was one within jurisdiction. If the court or Judge Ford erred in deciding that the bonds were the equivalent of money, and in accepting them in place of bail, plaintiff may not complain thereof. Moreover the attack here is collateral, as will be mentioned hereafter.
In the next place, plaintiff has no interest in or title to the bonds so far as the state or appellant is concerned. She has had no title or interest since she parted with them to Craig in September, 1923. The rule is general, and always under statutes like Revised Codes, sections 12154-12160, that money deposited in lieu of bail is, in contemplation of law the property *322
of the defendant, no matter who advanced it or who is the owner as between defendant and another person; and that the money must be returned to the defendant upon his surrender. (Mundell v.Wells,
This action is a collateral attack upon two orders of the lower court and one final judgment thereof, all made within jurisdiction (and, it may be remarked again, by a person who is without title to the subject of the action). Herein plaintiff indirectly assails as null and void the order and direction of the court and judge for the deposit of the bonds and release of Craig from custody; she indirectly assails the order forfeiting the bonds to the extent of $2,000, which was duly given upon Craig's default of appearance at trial; and she indirectly assails the judgment against Craig and the bonds for $2,000, *323
to be collected by writ of execution against the bonds. We submit that she should not be allowed to do this. Craig could not; and for even better and more cogent reasons (if such may be) she cannot. Plaintiff was in no aspect a surety for Craig; no proceeding whatever was necessary or even proper to complete the forfeiture; the judgment against Craig who deposited the funds (bonds) concludes all matters which might have been urged prior to the adjudication as to the parties and persons interested, including any person who, as between herself and Craig, owned the fund; and neither the order of forfeiture nor the judgment may be collaterally attacked or questioned. (Mundell v. Wells,
Further proof that the person furnishing money, or the equivalent, in place of bail, is not a surety and has no right of a surety under such statutes as sections 12154 and 12156, appears from the fact that such person is never entitled to surrender the accused in exoneration of the deposit. (Mundell v. Wells,supra.)
Even if the district court and Judge Ford were without authority to take the Liberty bonds in lieu of bail, plaintiff will not be here to complain for three reasons: 1. She has no interest as already shown. 2. She is estopped. 3. She waived the requirement of a deposit of actual money. There is not a dearth of cases announcing these principles, which appeal with peculiar force in the present case. (See Sauskelonis v. Herting (Cityof New Britain),
What are Liberty bonds but the promise of the United States to pay at a future date money and in effect they are but promissory notes of the United States. At the time they were deposited they were not worth their face value; they were not payable in full on demand; they had not been made legal tender by Congress, and were nothing more nor less than the mere promise of the United States to pay to the holder a number of years hence the amount set forth in said bond with interest. Money does not include bonds. (Hancock v. Lyons,
The agreed statement of facts shows that the plaintiff owned the Liberty bonds and not Craig, the defendant in the criminal *325
action. The cases hold that as the defendant clerk in this case was without authority to receive the Liberty bonds as bail in lieu of a written undertaking; he received them merely in his private capacity and is, therefore, answerable to the owner only in that capacity. (Commonwealth v. Sitler,
That money deposited with a police justice in lieu of bail, when he accepts without authority, can be recovered back, was held in McNamara v. Wallace,
In State v. Lagoni,
Appellant's counsel seemingly place chief reliance uponMundell v. Wells,
No written undertaking was ever substituted for the bonds, but on or about the twenty-seventh day of November, 1923, Mr. Angell, counsel for Craig, in Craig's behalf and at the request of the plaintiff, offered to the clerk of the court at White Sulphur Springs, and upon his refusal to accept the same, to Judge Ford at Harlowton (district court being in session in Wheatland county with Judge Ford presiding), a written undertaking in the form required by statute, the sureties whereon could qualify. When the written undertaking was offered Craig was not in court; indeed, he had left the court's jurisdiction; his whereabouts were then and ever since have been unknown to his counsel. Never since he deposited the bonds has Craig surrendered, or offered to surrender, himself into custody. Judge Ford refused to accept the written undertaking. Craig did not appear for trial upon March 16, 1924, that being the date when his case was set for trial, and he has never appeared since.
On February 16, 1924, Aurelia Kirschbaum, the plaintiff, began an action in claim and delivery against F.H. Mayn, as clerk of the court, and F.H. Mayn individually, to recover the possession of the bonds or the sum of $2,000, the value thereof, in case delivery could not be had. On March 10, 1924, defendant answered. He admitted his possession of the bonds, and alleged that he retained the same as clerk and not otherwise. *328 He pleaded the facts under which the bonds were delivered to him by the prisoner and set forth plaintiff's participation in the transaction. Defendant also pleaded estoppel as against the plaintiff.
When Craig did not appear for trial upon March 18, 1924, the court made an order setting forth that he had failed to appear for trial upon the day set which constituted failure and breach of the obligation and recognizance entered into by him by his deposit of the bonds with the clerk; whereupon his default was ordered entered in the minutes and the deposit made by him declared forfeited to the value of $2,000, and it was ordered that judgment be rendered against him in favor of the state of Montana for that sum of money; it was directed that execution issue against the bonds for that sum, accruing interest, and all proper costs of sale under the writ. The order is still in full effect. Subsequent to the entry of the order a judgment was rendered in favor of the state against Herbert Craig as defendant for the sum of $2,000, with interest, and it was directed that the same be satisfied out of the bonds.
Plaintiff replied to defendant's answer on April 29, 1924. On June 27, 1924, plaintiff and defendant agreed in writing upon the facts. Trial followed, Judge Lynch sitting for Judge Ford, with the result that the court ordered judgment entered in favor of F.H. Mayn as clerk of the court, but rendered judgment to the effect that the plaintiff recover from F.H. Mayn the possession of the bonds, or the value thereof in the sum of $2,000, in case delivery of the bonds could not be had, together with costs. From this judgment the defendant F.H. Mayn has appealed. The plaintiff has moved to dismiss the appeal. We deem the motion without merit. It is overruled.
1. Admission to bail is the order of a competent court or[1, 2] magistrate that the defendant be discharged from actual custody upon bail. (Sec. 12133, Rev. Codes 1921.) The taking of bail consists in the acceptance, by a competent court or magistrate, or legally authorized officer, of the undertaking of sufficient bail for the appearance of the defendant, according to the terms of the undertaking, or that the bail will pay to the state a specified sum. (Sec. 12134, Rev. Codes 1921.) *329
By the terms of section 12154, it is provided: "The defendant, at any time after an order admitting him to bail, instead of giving bail, may deposit with the clerk of the court in which he is held to answer the sum mentioned in the order, and, upon delivering to the officer in whose custody he is a certificate of the deposit, he must be discharged from custody."
The "sum mentioned in the order" means a sum of money. (Sec. 9831, Rev. Codes 1921.) It is conceded, as it must be, that the order fixing bail was lawful, but it is vigorously contended by counsel for plaintiff that the deposit of the Liberty bonds was not equivalent to a deposit of $2,000 in money. Apparently it is upon this theory that plaintiff's case and the judgment in her favor rest: the court evidently concluded that the receipt of the Liberty bonds was not authorized by statute, and therefore the order of the court directing their receipt by the clerk was unlawful, and their retention by the clerk was unlawful; upon this premise the clerk did not receive them in his official capacity, because that would be unlawful, but in his private capacity and therefore he became answerable to the owner only in his private capacity. The judgment of the court was wrong upon two grounds: first, it is specifically stipulated by the parties, as we have seen, that the deposit of the Liberty bonds was the substantial equivalent of actual money or cash to the amount of $2,000, and it does not now lie in the mouth of the plaintiff to deny it. Secondly, upon the admitted facts, the plaintiff is estopped to deny that the court did not have authority to receive the bonds as bail; if it were admitted that the court did wrong in accepting them the plaintiff will not be heard to assert the fact to her advantage, for she is in pari delicto. She aided and abetted Craig in securing his release from custody by means of these very bonds which she furnished him for that purpose. Had it not been for her the court would not have been persuaded into an action which she now attempts to assert is wrong. She will not be permitted to take advantage of her own wrong. (Sec. 8746, *330 Rev. Codes 1921.) The law will leave the plaintiff where she has voluntarily placed herself.
The following authorities are in accord, although we do not commit ourselves to the full length to which some of them go:Bryant v. City of Bisbee (Ariz.),
2. Nor is it material that the sheriff did not receive "a[3] certificate of deposit," in accordance with section 12154,supra. This would be sacrificing substance to form. The fact is that the prisoner was in court in the custody of the sheriff. When the prisoner pursuant to his own request delivered the bonds to the clerk upon the court's direction, he was "forthwith by direction or order of the court, duly given, granted his liberty and discharged from custody," the sheriff was directed to release the prisoner and did so. The prisoner did not need the certificate, for, so far as he was concerned, its object was attained, he was at liberty. The fact that the sheriff did not demand a certificate for his files (which would disclose his authority for releasing the prisoner) is not that which concerns this plaintiff.
3. But it is urged by counsel for plaintiff that the agreement was that the bonds were to remain as bail only until a written undertaking should be furnished, which should be within a reasonable time, "and as soon as John Kirschbaum came to town to sign up the bond." It is said this agreement was kept faithfully by Craig in that his counsel presented to the clerk and to the judge a bond in the form required by the statute, the sureties whereon could qualify. Why Judge Ford did not approve the undertaking we do not know. Possibly it was because Craig was not then within the jurisdiction of the court. Whatever the reason was, the fact remains that he did not accept the undertaking, and the bonds continued to stand as bail. When Craig was called for trial, *331 came not but made default, the bonds became forfeited, as the court adjudged.
Also it is asserted by plaintiff's counsel that when this action was begun the court had not forfeited the bail and had not rendered judgment against Craig, and the case should be decided upon the facts as they existed when the action was begun. The action, as will be remembered, was commenced on February 16, 1924, while the order of forfeiture and judgment were not made until March 18, 1924. The agreed statement, however, has furnished to the court the facts necessary to a decision upon the merits. Incidentally if it were necessary to have pleaded those facts, which it was not, the situation considered, they might have been supplied by supplemental pleadings.
4. It is agreed by the parties that the defendant received the[4] bonds as clerk of the court and not otherwise. He did so at the court's direction, and in view of the conceded facts it cannot be said that the court's action was unlawful. The court erred in rendering judgment against the defendant in his individual capacity. The judgment in favor of the defendant in his official capacity is not attacked; it stands unquestioned.
The judgment is reversed with directions to the district court of Meagher county to enter judgment in favor of the defendant F.H. Mayn.
Reversed.
ASSOCIATE JUSTICES HOLLOWAY, GALEN, STARK AND MATTHEWS concur. *332
