Miller v. State

Mar 18, 1955
No. 18,662
Versions:125 N.E.2d 177
125 Ind. App. 358
1955 Ind. App. LEXIS 132
Pfaff, J.

The appellant, Richard Miller, was charged with the commission of a criminal offense and was released from custody upon the filing of a recognizаnce bond in the statutory form with the corporate appellant as surety thereon.

Appellant, Richard Miller, did not appear in person оn the date set for trial and the court entered an order that the bond be forfeited. The Clerk was ordered to notify the surety of such forfeiture by mail. Thereafter the affidavit of the Clerk was filed to the effect that he forwarded notice, a copy of which was attached, to the surety by United States registered mail, with the proper and necessary postage thereon. Also filed was an acknowledgment of receipt of notice, signed by the рresident of the corporate surety.

The corporate surety did not produce the appellant Miller within ten days after such mailing and the court entered judgment that the State of Indiana recover the amount of the bond of and from both Miller and his surety.

Sec. 9-722, Burns’ 1942 Replacement, makes provisiоn for judgment against the surety without pleadings, but does not provide for the obtaining of a judgment against the principal in this manner. Starkie et al. v. State of Indiana (1943), 113 Ind. App. 589, 49 N. E. (2d) 968. The appellee concedes that it was improper ‍​‌‌​​‌​‌​​‌​‌‌‌‌​‌‌‌‌​​‌‌​​‌‌​‌​‌‌‌​‌​​​​‌‌​​​​‌‍to enter judgment against Miller but contends that Miller is *360not a proper party to this appeal; that the appeal as to him is premature; that he could appeal after the criminal case is finally concluded, “or he could move to expunge said vоid judgment at any time thereafter and appeal from an erroneous ruling made thereon.”

The appellee’s contention that Miller is not a proper party to this appeal is based upon the case of Starkie et al.. v. State of Indiana, supra. There the judgment was against the surety only, and it was held that one against whom no judgmеnt has been or can be rendered in the proceeding should not have a right to appeal therefrom. But while no judgment could be properly rеndered against the appellant Miller in this proceeding, such a judgment was actually rendered. It was final as to him. It was not held in abeyance pending thе disposition of the criminal charge. Rule 2-6, Rules of the Supreme Court, provides, “In the title to the assignment of errors all parties to the judgment seeking reliеf by appeal shall be named as appellants ...” Miller is a party to the judgment, is seeking relief therefrom, and is a proper party to this appeal.

Sec. 9-722, Burns’ 1942 Replacement, provides that the surety may appeal to this court without moving for a new trial. While such a motion was filed in this casе by both the principal and surety, it does not appear in the briefs, and no question is therefore presented concerning it. Rule 2-17, Rules of the Supremе Court; Coleman v. New York, Chicago & St. Louis Railroad Co. (1951), 121 Ind. App. 616, 101 N. E. 2d 721; Mendenhall, Extr., etc. v. Lay et al. (1953), 123 Ind. App. 486, 111 N. E. 2d 662. In any event, where there is no trial (and there was none ‍​‌‌​​‌​‌​​‌​‌‌‌‌​‌‌‌‌​​‌‌​​‌‌​‌​‌‌‌​‌​​​​‌‌​​​​‌‍here), a motion for a new trial is not required. Gavit, Indiana Pleading and Practice, Ch. 21, Sec. 451, p. 2403; Vol. 2 Watson’s Works and Practice, Sec. 2033, p. 588.

*361Appellants have assigned that there wаs error “in rendering judgment against appellants for forfeiture of a recognizance bond.” As stated in Ewbank’s Indiana Criminal Law, 2d Edition, Sec. 282, p. 165, “A judgment declaring a reeognizánеe forfeited is a mere interlocutory order forming part of the proceedings in the prosecution, from which no appeal will lie until after judgment on the bond.” In this case final judgment has been rendered and error in connection with such interlocutory order may be presented on appeal. Appellee, however, contends that this assignment of error is too general and therefore raises no question.

A specific assignment of errоrs is required by Rule 2-6, Rules of the Supreme Court, which merely repeats the requirements of the 1881 statute in that respect. Acts of 1881 (Spec. Session), Ch. 38, Sec. 647, p. 240; Sеc. 2-3225, Burns’ 1946 Replacement. Error in other proceedings, where a motion for new trial is inappropriate, has been held to be presented by assignments of error which are not more specific than the one here. For example, it is a proper independent assignment of error that the court erred in denying appellant a temporary injunction, and all of appellant’s contentions may be considered under this assignment. Flanagаn, Wiltrout & Hamilton, Indiana Trial and Appellate Practice, Ch. 47, Sec. 2390, p. 162; Goldsmith et al. v. City of Indianapolis (1935), 208 Ind. 465, 196 N. E. 525; Koss v. Continental Oil Company (1944), 222 Ind. 224, 52 N. E. 2d 614; State ex rel. Board of Medical Registration & Examination v. Henry (1951), 229 Ind. 219, 97 N. E. 2d 487. It is a proper assignment that the court erred in refusing to grant, or in denying, a temporary injunction. Lawless et al. v. Johnson et al. (1953), 232 Ind. 64, 111 N. E. 2d 656; State of Indiana *362ex rel. Board of Medical Registration and Examination v. Stucker (1953), 232 Ind. 76, 111 N. E. 2d 714. Also sufficient is an assignment that the court ‍​‌‌​​‌​‌​​‌​‌‌‌‌​‌‌‌‌​​‌‌​​‌‌​‌​‌‌‌​‌​​​​‌‌​​​​‌‍erred in apрointing a receiver for appellant. Second Real Estate Investments, Inc. v. Johann, Jr., Administrator D.B.N. et al. (1953), 232 Ind. 24, 111 N. E. (2d) 467. As was stated in Starkie et al. v. State of Indiana, supra, in the instant type of case the statute neither limits nor prescribes the assignment of errors. In our opinion the assignment here is sufficiently specific.

The appellant Miller was arrested and the bond given herein on September 10, 1953, during a vacation of the Jasрer Circuit Court. The September term of that court began on September 14, 1953. Sec. 4-332, Burns’ 1946 Replacement. On September 22, 1953, the cause was set for trial for November 30, 1953. It was continued by agreement of the parties. On January 11, 1954, the first day of the January term, it was set for trial for February 24, 1954.

The statutory form of bond, Sec. 9-722, Burns’ 1942 Rеplacement, reads, in part, as follows:

“If A B (the prisoner) shall appear on the — day of-, 19—, in the-court, to answer a charge . . . , and from day to dаy and from term to term thereof . . . , then this recognizance shall be void, else to remain in full force.”

In the preparation of the bond in this case the dаte was left blank. Appellants contend that this is fatal to any ‍​‌‌​​‌​‌​​‌​‌‌‌‌​‌‌‌‌​​‌‌​​‌‌​‌​‌‌‌​‌​​​​‌‌​​​​‌‍forfeiture; that the date may not be supplied by intendment. Sec. 9-1033, Burns’ 1942 Replacement, provides:

“No recognizance, undertaking or bond taken in any criminal proceeding shall be void for want of form or substance or for omission of any reсital or condition, or because the same was entered into *363on Sunday, nor shall the principal or surety be discharged, but the principal and surety shall be bound by such recognizance, undertaking or bond to the full extent contemplated by the law requiring the same, . . . And no action upon such recognizance, undertaking or bond shall be defeated for any want of form or substance, or for the omission of any recital or condition ...”

Sec. 3-2512, Burns’ 1946 Replacement, contains similar provisions. See Flanagan, Wiltrout & Hamilton, Indiana Trial and Appellate Practice, Ch. 44, Sec. 2229, p. 62. The defendant, Richard Miller, and his surety voluntarily executed the recognizance in order to secure the release of the defendant Miller from custody, and thereby did secure such release. The omission of the date did not cause thеm to be misled in any way. In our opinion the recognizance was valid, and there was no error in rendering such judgment or order of forfeiture. By reason of thе curative statutes, as was said by the Supreme Court in Black et al. v. The State ex rel. McAllister, Prosecuting Attorney (1877), 58 Ind. 589, “It could hardly be otherwise.”

Appellants next complain of the sufficiency of the proof of the giving of notice of the judgment of forfeiture, as well as to the type of notice given. It would require extreme liberality to hold that these alleged errors are covered by the assignment of errors, which is directed to the judgment of forfeiture and ‍​‌‌​​‌​‌​​‌​‌‌‌‌​‌‌‌‌​​‌‌​​‌‌​‌​‌‌‌​‌​​​​‌‌​​​​‌‍not the judgment on the,bond. We might say, however, that the proof of giving of the notice was in the form approved by Sec. 2-1637, Burns’ 1946 Replacement, and that there is nothing in Sec. 9-722, Burns’ 1942 Replacement, which requires the construction as to the type of notice for which appellants contend.

The appellant surety has presented no reversible error, and the judgment is affirmed as to it. Appеllee *364concedes that the judgment as to the appellant Miller was improperly rendered and is void. The judgment as to the appellant Miller is reversed.

Note.—Reported in 125 N. E. 2d 177.