43 Md. 295 | Md. | 1875
delivered the opinion of the Court.
The reasons assigned in the Court below for quashing tifos fieri facias are, 1st, that the writ issued improvidently and without due warrant of law ; 2ndly, that the recognizance alleged to be forfeited by the judgment of the Circuit Court for Baltimore County is in fact null and void ; and 3rdly, that the fieri facias ought to be quashed for sundry other errors and irregularities apparent upon the face of the proceedings.
Without stopping to inquire whether the grounds thus assigned in support of the motion to quash be sufficiently specific to raise the questions presented in the brief of the counsel of the appellant, in view of the rule which precludes this Court from deciding any point or question not plainly presented by the record as having been tried and decided by the Court below, we shall, upon the assumption that such questions are properly before us, proceed to consider them in the order in which they are stated in the brief.
Before doing so, however, it is proper to notice the fact, that though several of the questions presented involve the true state of the record of' the proceedings in the Circuit Court for Baltimore County, on which the fieri facias issued, yet that record was not produced in the Court below, and, of course, is not before this Court. The short docket entries, sent with the fieri facias to the Superior Court, appear to have been the only evidence relied on to
1. Now, the first question presented is, whether the Circuit Court for Baltimore County, after the removal of the cause and the actual receipt of the transcript of the record from the Criminal Court of Baltimore City, had power and jurisdiction to take the separate recognizance of the appellant for the appearance of Catharine Higgins, one of the parties accused, although the latter was absent, and remained at the time confined in the Baltimore City jail? This latter fact appears only inferen Rally, but taking it as sufficiently plain, we can perceive no real difficulty in maintaining the validity of the recognizance.
Upon the receipt of the transcript of the record of the removed cause, the Circuit Court for Baltimore County at once acquired jurisdiction, not only of the cause itself, hut of the parties accused ; and the fact that they were detained in prison in Baltimore City in no manner affected the jurisdiction thus acquired. The statutes referred to, providing that the parties accused, if in prison, shall not he removed until the first day of the session of the Court to which
2.' The sécond question presented is based upon the non-appearance of what are supposed to be essentials to the validity of the recognizance.
It is contended that because the short docket entries do not show all the terms and conditions of the recognizance, — such as the acknowledgment of indebtedness to the State, of what crime the prisoner was charged, and the particular time for appearance to answer, — therefore the recognizance itself should be declared void. But, as we have said, these short docket entries cannot be relied on to prove the real state and contents of the record, nor are we to assume that there is not a more formal and extended record of the proceedings in existence than the mere short entries of the clerk made upon his docket. The
3. The third question is predicated of what is supposed to be a fatal omission in the Circuit Court, in not calling Catharine Higgins before forfeiture entered against the appellant. This question is disposed of in what we have already said in reference to the question last considered. Whether the accused was called or not does not appear; but it is recited in the fieri facias that the appellant, in whose custody the accused was supposed to be, was solemnly called to bring into Court the body of Catharine Higgins, according to the tenor of the recognizance, but that the appellant failed so to do, and made default; whereupon it
• 4. As to the fourth point on the brief, that is disposed of in what has already been said. In a case like the present we are not, as contended by the appellant, to take the ■docket entries as controlling, and if there be a question of variance between the record and. the writ founded therón, (the party having the right to plead as to a scire facias,) that question should be raised and tried on plea of mil tiel record, under the Code, Art. 75, sec. 18. 5 Gill, 109; 6 Md., 444.
5. With respect to the fifth and last question presented, we perceive no real difficulty, such as that supposed to exist. A recognizance is an obligation of record, and when forfeiture is declared and entered by the Court, it becomes a judgment. It is then like an ordinary judgment, enforcible by execution, and is clearly embraced within the terms of the Code, Art. 18, sec. 5, as amended and reenacted by the Act of 1865, chapter 5, providing for the issuing of an execution to another county than that in which the judgment is rendered. There was no stay of execution upon this judgment, and hence the provision in the Act of 1865, ch. 5, that no execution shall be issued and directed to another county earlier than the same could be issued and directed to the sheriff of the county or city wherein the judgment may have been rendered, has no application to this case.
It follows that the judgment appealed from must be affirmed, and the case remanded.
Judgment affirmed.