289 P. 231 | Cal. Ct. App. | 1930
One Slaymaker was arrested on November 23, 1925, and charged with a felony. Upon arraignment in the justice's court his bail was fixed at $1,000, being later raised to $2,000. The defendant, Surety Company, furnished two bonds in the sum of $1,000 each, the first on November 23, 1925, and the second on November 27, 1925, at which time the defendant was released. He appeared at the preliminary hearing, and was held to answer. Thereafter, said defendant was arraigned in the superior court and pleaded "not guilty." When the case was regularly called for trial the defendant did not appear. It is conceded that no bail was fixed, ordered or accepted subsequent to the preliminary examination and the commitment of said defendant. After due proceedings the bail was ordered forfeited, and the complaint in this action was filed setting up the above facts, and seeking to recover the amount specified in the two bonds. The defendant herein demurred to the complaint on the ground that it did not contain facts sufficient to constitute a cause of action, and also on the ground that two causes of action were attempted to be pleaded, but not separately stated. The demurrer being overruled and the defendant declining to answer, judgment was entered, from which judgment this appeal is taken. *374 [1] The first ground of reversal urged is that the court erred in overruling the demurrer, since the complaint sets forth both bonds sued upon in one cause of action, whereas it is insisted that there were two causes of action which should have been separately stated. We think the trial court should not have disregarded this rule of pleading, and should have required the plaintiff to amend the complaint in this respect. On the other hand, while it would have been better pleading to have stated these causes of action separately, under section 4 1/2 of article VI of the Constitution, we may not reverse a judgment for any error as to any matter of pleading, unless after an examination of the entire cause, including the evidence, we are of the opinion that the error complained of has resulted in a miscarriage of justice. No such result appears here, and nothing to show that the appellant was in any manner injured. The point raised is not only a highly technical one, but the whole transaction was fully set forth in the complaint and could have easily been answered by the defendant. No reason appears why the matter alleged could not have been just as fully and more easily answered as here pleaded, than if separated into two causes of action. This is especially true since, as a matter of fact, these two bonds were used together as a part of one transaction, for the one purpose of together furnishing sufficient bail to secure the release of a defendant, who was released only when the second bond was filed, the two being treated in combination. While technically there may be a difference, practically it was as much one transaction as would have been the case had two thousand dollar bills been deposited for the purpose. We are of the opinion that the error under consideration was not sufficient to require a reversal of the judgment.
[2] The principal contention of appellant is that the complaint did not state a cause of action, it being maintained that a justice of the peace, upon admitting a defendant to bail before a preliminary examination is held, has no authority to accept bail that shall apply after such a defendant has been held to answer. And that, since the defendant, Slaymaker, appeared at the preliminary hearing, the agreement of the defendant herein as set forth in the bonds in question was fully performed, the failure of said defendant to appear for trial in the superior court not *375
being covered by said bonds under our law. Appellant argues that the only authority for admitting a defendant to bail before conviction, is given by sections
The authority for admitting a defendant to bail when the preliminary examination is not held immediately after the arrest, is contained in section
"Nature of bail. If the offense is bailable, the defendant may be admitted to bail before conviction:
"First. For his appearance before the magistrate, on the examination of the charge, before being held to answer.
"Second. To appear at the court to which the magistrate is required to return the depositions and statement, upon the defendant being held to answer after examination."
Section
"What magistrates may admit to bail. When the defendant has been held to answer upon an examination for a public offense, the admission to bail may be by the magistrate by whom he is so held, or by any magistrate who has power to issue the writ of habeascorpus."
Section
Each of the bonds here in question contained the following:
"Now, we, Fidelity and Deposit Company of Maryland, a Corporation, . . . hereby undertake that the above named Nathaniel E. Slaymaker will appear in that or any other court in which his appearance may be lawfully required upon that charge and will, at all times, render himself amenable to its orders and process, and appear for judgment and surrender himself in execution thereof; or if he fails to perform either of these conditions, that we will pay to the people of the State of California the sum of One Thousand Dollars."
This substantially follows the requirements of section
Examining section
We find nothing in these statutes denying to the magistrate authority to accept bail prior to the preliminary examination, the bond being conditioned upon the defendant appearing and answering the charge in whatever court it may be prosecuted, and upon his holding himself amenable to its orders and processes at all times, including his appearance for judgment, if convicted. On the other hand, these statutes seem to particularly authorize such a bond.
[3] Under such circumstances it becomes a question of contract as to what the parties have themselves agreed upon in the bonds in question. In San Luis Obispo v. Ryal,
"It is a familiar rule of law that sureties cannot be held beyond the terms of their contract of suretyship. They have a right to declare in their bond the terms and conditions upon which they shall be bound, and to stand on the precise terms of that contract." *378
In the case of Weinreich E. Co. v. A.J. Johnston Co.,
"As to those (authorities) announcing the general rule that sureties are entitled to stand upon the precise terms of their contract, they must be considered in the light of the language used by Mr. Justice Lorigan in Sather Banking Co. v. Arthur R.Briggs Co.,
In the case at bar the appellant agreed in writing to undertake that the defendant for whom bail was given would appear in the justice's court or, "any other court in which his appearance may be lawfully required upon the charge, and will at all times render himself amenable to its orders and process, and appear for judgment and surrender himself in execution thereof; or if he fails to perform either of these conditions, that we will pay to the People of the State of California the sum of One Thousand Dollars."
It has heretofore been held that the form of bond provided for in section
"The condition of the bond which is alleged to have been broken is that `The above-named Juan Santos will appear and answer the charge above mentioned in whatever court it may be prosecuted, and will, at all times, hold himself amenable to the orders and process of the court.' The complaint shows that the case was regularly set for trial for *379
December 7, 1908, in the superior court of Shasta county, and on said day, `the said case was duly called to trial in said superior court, and the said Juan Santos having been theretofore duly advised of the time and place of said trial, then and there failed to appear for trial,' etc. That the sureties undertook to produce Santos at the trial of the cause in the superior court when they promised that he would `appear and answer the charge in whatever court it may be prosecuted' is too plain for argument." (People v. Bellafont,
In the case of State v. Sorensen, 48 Utah, 663 [160 P. 1181], decided by the Supreme Court of Utah, it was argued that a bail bond was given for the defendant's appearance only in the justice's court and hence that the failure of the defendant to appear in the District Court for arraignment was not a default or breach within the terms of the bond. The Utah statute, almost in the exact language of section
"If the offense is bailable, the defendant may be admitted to bail: Before conviction — (1) For his appearance before the magistrate on the examination of the charge, before being held to answer; (2) to appear at the court to which the magistrate shall be required to return the complaint, upon the defendant being held to answer after examination; . . ."
The court there held that the bond in question, conditioned that the defendant "will appear and answer the charge above mentioned before said justice, or in whatever court it may be prosecuted," covered the appearance of the defendant in the District Court. Not only did the bonds here in question contain similar language, but under section
There is no ambiguity in the bonds under consideration and their language is plain. Appellant agreed to pay a certain sum of money in the event the defendant, whose release was secured by said agreement, failed to comply with certain requirements definitely nominated in the bond. The requirements not having been complied with, the agreement of the appellant must be enforced.
The judgment is affirmed.
Cary, P.J., and Marks, J., concurred. *380