192 Wis. 151 | Wis. | 1927
The theory of the relator is that the circuit court for Columbia county has no jurisdiction to do anything but to return the money; that the court acted without and beyond its jurisdiction in impounding the money until . such time as an action could be begun and prosecuted and the issues determined.
The principal question raised is: Did the circuit court for Columbia county act in excess of and beyond its jurisdiction in directing the clerk of the circuit court for Columbia county to retain in his hands the sum of $1,500 until the ownership of the fund should be established?
The provisions of the statute relating to the deposit of money as bail as far as material here are as follows :
Sec. 361.42, Stats.: “In all cases where a recognizance or bail bond with sureties is required by the court or other
Except for the statute, money could not be accepted in lieu of sureties. The rights of parties therefore rest upon an interpretation of the statute and the application of general principles of law. Relator rests his case here very largely upon State v. Wisnewski, 134 Wis. 497, 114 N. W. 1113. In that case the defendant, accused of the crime of forgery, had procured $800 from a third person and deposited it as cash bail under the statute. He was convicted upon a second offense, and while he was serving his sentence at the state prison the $800 deposit in the first case remained with the clerk of the court. He authorized his attorneys to apply to the court for a release of the cash bail, and upon petition the court directed the amount of $800 to be paid to the defendant’s attorneys. After payment, had been made, a third party applied to the court asking that the attorney be required to repay the amount to the clerk of the court and asking leave for opportunity to establish his title thereto. In construing the statute the court said:
“We think it clear from this statute that it contemplates that cash bail given by an accused person must be deposited by such person and applied by the magistrate or court as specified in the statute, and the surplus, if any, returned to such accused as the person depositing the same. (Citing cases.) It is insisted, however, by appellant that our statute, by the*154 use of the words 'rendering the surplus money, if any there be, to the person depositing the same,’ implies that a person other than the accused may make the deposit. We cannot think that the statute is capable of such construction, but on the contrary confines the right of deposit as cash bail on the part of the accused to the accused himself, and plainly provides that the surplus, if any, shall be returned to the accused as the person depositing the same. We think this construction becomes more clear from a careful examination of sec. 4816, Stats. 1898, as originally enacted and as amended by ch. 104, Laws of 1901.”
This construction was adhered to in State v. Brown, 149 Wis. 572, 136 N. W. 174. There a third person had furnished the money which was deposited under the statute by the defendant. The defendant absconded, the cash bail was forfeited and paid into the county treasury. The third party made a petition to the circuit court asking that the county be directed to return the amount of the deposit to the third party, who was the owner of the fund as between the defendant and the petitioner. The court said:
“The defendant gave his own personal recognizance, and because the surety which he offered could not qualify he gave no surety, and the deposit amounted to a deposit of money under the statute in lieu of sureties. This was the effect of the transaction, therefore the order forfeiting the bail and ordering the money paid into the county treasury was regular. Since the money was deposited in lieu of sureties, it must abide the consequences of such deposit.”
If State v. Wisnewski and State v. Brown be limited to the questions necessarily involved respectively, the question presented in this case is not passed upon in those cases. In the Wisnewski Case the money had been paid out to the defendant, who was the depositor, there had been no forfeiture, and nothing was due or owing to the public treasury on account of the deposit. All the claims of the law had been satisfied and no question was raised as to the title to the fund. In the Brown Case the fund had been- appropriated to the
“This section authorizes the deposit to be made by the defendant and by no one else, and considering this section and other sections, we think it was the plain purpose of the statutes to require that the money thus deposited should, for the purposes of the deposit, in fact be the money of the defendant. . . . All these sections treat the money deposited as belonging to the defendant, and in all cases where money is deposited in lieu of bail it may be applied in payment of any fine imposed, and the surplus, if any, after the fine has been satisfied, must be returned to the defendant. The relator when he deposited this money- must be assumed to háve known the provisions of these statutes, and the deposit must have been made in compliance with them. There is no authority for the county treasurer to take a deposit in lieu of bail except by virtue of these statutes, and the deposit must be made in strict compliance with the statutes. The statutes may have been framed as they are for the very purpose of avoiding a dispute like that which has'arisen in this case. If the contention of the relator be upheld, then disputes may frequently arise as to whose money was deposited, and the county treasurer can never know with certainty to whom the money is to be returned, and the court cannot know in passing sentence, or in making its order, whether the money is properly applicable upon the fine imposed. It is therefore wiser that the provisions of the statute should have their ob*157 vious meaning, to wit: the money is deposited as the money of the defendant, and if a fine is inflicted upon him it may be used to pay the fine, and the surplus is to be returned to him. When any party other than the defendant makes the deposit for him, it is a deposit in compliance with the statute, and the money is thus devoted to the purposes of the statute, and to the use of the defendant. ... So far as the relator is deprived of his money, it is by his voluntary act and implied assent.”
It is to be noted that the language of sec. 361.42, Stats., is “rendering the surplus money, if any there be, to the person. depositing the same.” The New York statute provided:
“If money be deposited as provided in the last section, bail may be given in the same manner as if it had been originally given upon the order for admission to bail, at any time before the forfeiture of the deposit. The court or magistrate before whom the bail is taken must thereupon direct, in the order of allowance, that the money deposited be refunded by the county treasurer to the defendant; and it must be refunded accordingly.”
Another section of the New York statute provided “that if money has been deposited instead of bail, and the defendant at any time before the forfeiture thereof surrender himself to the officer to whom the commitment was directed, in the manner provided in sec. 590, the court must order a return of the deposit to the defendant.”
An examination of ch. 104, Laws of 1901, referred to in the Wisnewski Case, does not throw any light upon the matter. That act made the deposit applicable to the discharge of any fine that might be adjudged against the defendant.
The holding in People ex rel. Gilbert v. Laidlaw has been criticised and to some extent impaired by subsequent cases. See People ex rel. Meyer v. Gould, 75 App. Div. 524, 78 N. Y. Supp. 279; In re Rothschild, 84 App. Div. 196, 82 N. Y. Supp. 558; Cohen v. Bruere, 96 Misc. 609, 162 N. Y. Supp. 75; Harrigan v. Prendergast, 94 Misc. 151, 157 N. Y. Supp. 1086.
The question has also arisen in other jurisdictions under statutes similar but not identical with the Wisconsin statute. See Isbell v. Bay Circuit Judge, 215 Mich. 364, 183 N. W. 721; State v. Carey, 151 Minn. 517, 187 N. W. 710; Mundell v. Wells, 181 Cal. 398, 184 Pac. 666; Way v. Day, 187 Mass. 476, 73 N. E. 543.
No useful purpose would be served by stating the facts, setting out the statutes, and reviewing these decisions. Many-if not most of them cite People ex rel. Gilbert v. Laidlaw. Upon that case rests also the decision,in Tennessee cited in State v. Wisnewski.
The holding in the later cases is that money deposited as bail under a statute is conclusively presumed to be the property of the defendant so far as the purpose of the deposit is concerned. It may therefore be forfeited in the event that the person bailed fails to appear; if he be convicted and the statute so provides, it may be applied to the payment of his fine or other appropriate use may be made of it where the statute gives the State a claim upon it. When all of the claims of the State have been satisfied, it then remains in the hands of the clerk as a deposit and prima facie is presumed to be the property of the defendant. If a claim thereto be set up by a third party, the court may proceed summarily to determine the true title to the fund in some appropriate proceeding. We are convinced that this is sound doctrine and State v. Wisnewski and State v. Brown are modified accordingly. No third person will be heard to assert the title to the fund until the purposes of the statutory deposit have been fully accomplished. It is a rather disconcerting idea that a court which has ample jurisdiction to determine the title to a
In this case the court impounded the fund and a separate action was begun. While the procedure suggested would be simpler, we see no reason why the present proceeding should be discontinued. It appears, therefore, that the circuit court for Columbia county was not without jurisdiction and that it did not act in excess of and beyond its jurisdiction. The procedure adopted is sanctioned in a number of cases and was no doubt pursued out of an abundance of caution, but the court has full power and jurisdiction to determine the issues whether determined in a summary proceeding or in a separate action. In reaching this conclusion we have disposed of the matter upon its merits so far as the law is concerned, and it remains for the facts to be established in ordinary course in the action pending in the circuit court for Columbia county.
By the Court. — Petition denied.