Lamonte v. Ward

| Wis. | Jan 15, 1875

Lyon, J.

I. It is stated in the complaint that the case of Lamonte v. Pierce was commenced in the Milwaukee county court; that all of the proceedings in the cause until after the alleged contempt was committed by Pierce, were had in that court; and that, pending an application to punish Pierce for such contempt, the venue was duly changed to the circuit court. It is now claimed, on behalf of the appellants, that such change of venue was without authority of law, and, consequently, that the circuit court never obtained jurisdiction of the proceeding. The statute provides for the removal from the county to the circuit court of any cause or matter which shall come before the county court or judge, in which the judge shall be interested, or in which he shall have acted as counsel for any party. R. S., ch. 117, sec. 59, as amended by ch. 33, Laws of 1862 (Tay. Stats., 1323, § 84). If this proceeding- is not a cause within the meaning of the statute, it is, certainly, a matter, and we have no doubt it is within the intention as well as the letter of the statute. The complaint does not state the reasons for the removal of the proceeding to the circuit court, and, in the absence of averment, we must presume, in favor of the regularity of such removal, that it was for one of the causes specified in the statute. It follows that the first ground of demurrer is not well assigned.

II. Does the complaint state facts sufficient to constitute a cause of action ? The theory of the law is, that the principal in a recognizance or in a bond like that under consideration, is in the custody of his sureties, who may at any time arrest him and. surrender him to the court. If the right of surrender be taken away or interfered with by a party claiming under the obligation, or by operation of law in certain cases, or by order of the court, the liability of the sureties is at an end. Hence it has been held in England, that, inasmuch as a peer or member of the house of commons cannot be surrendered by the bail in their discharge, if the principal become a peer or such member pending the action, the court will order an’ exoneretur to be entered. So also if the defendant be sent out of the kingdom under the alien act, or sentenced to transportation on a conviction for felony, the bail are entitled to their discharge. Trinder v. Shirley, 1 Doug., 45; Merrick v. Vaucher, 6 Term, 50; Wood v. Mitchell, id., 247; Petersdorff on Bail, 393-4, 405 (8 Law Library, 219-20, 225.) The same doctrine was held by the supreme court of the United States in Reese v. The United States, 9 Wall., 13" court="SCOTUS" date_filed="1870-01-24" href="https://app.midpage.ai/document/reese-v-united-states-88128?utm_source=webapp" opinion_id="88128">9 Wall., 13.

In the present case, the sureties had no authority to surrender their principal after the attachment was vacated. After that time there was no order or process of the court in existence which would justify the arrest of the principal, and his sureties were powerless to interfere with him. This necessarily released the sureties, and it is not perceived how the order of July 22d can operate to restore their liability. It seems quite clear that, having become released, they cannot again be made liable on their bond without their consent.

The power of the court to vacate the order of June 26th, and to permit the prosecution for the alleged contempt to proceed, is not denied. But it was substantially a proceeding de novo, under which Pierce should have been brought into court, and, if necessary, required to give new bail.

Inasmuch as the complaint shows upon its face that the appellants are not liable on their bond, the demurrer thereto should have been sustained on the ground that the complaint fails to state facts sufficient to constitute a cause of action.

The order of the circuit court overruling such demurrer must be reversed, and the cause remanded for further proceedings according to law.

By the Court. — It is so ordered.