State v. Brown

149 Wis. 572 | Wis. | 1912

KeRwis, J.

It is insisted that the court had no power to make the order appealed from, because (1) it was not made at the same term nor within one year after the order forfeiting the bail was made; (2) because the application was not made by the proper party; and (3) that no jurisdiction was obtained of Milwaukee county, hence no order could have been made against it.

The fact that a year had elapsed would not bar relief from the forfeiture upon a proper showing. Had an application been made while the money remained under the control of the court, it may well be that the court would have power to relieve from the forfeiture though the year had elapsed. But no such case is made here. It appears that the order forfeiting the bail was regularly made. The defendant had absconded when the order was made and did not return until more than a year had expired after forfeiture of the bail and the money deposited had been paid into the county treasury in compliance with law. So upon no theory was the court justified in making the order appealed from;

Counsel for defendant frankly admits that if the authority to make the order appealed from rested upon sec. 2832, Stats. ' (1898), it could not be lawfully made. But be insists tbat no judgment against tbe surety was ever entered; tbat tbe deposit was not made in lieu of sureties, but in lieu of qualification, bence there .could be no forfeiture of tbe deposit and payment thereof into tbe county treasury as provided by sec. 4816, Stats. (Supp. 1906: Laws of 1901, cb. 104), and tbe order forfeiting tbe bail and ordering tbe money paid into tbe county treasury in accordance with tbe statute was void, therefore tbe one-year limitation does not apply. We cannot agree with counsel in this contention. Tbe argument as well as tbe conclusions rest upon tbe assumption that there was no valid forfeiture because tbe money was not deposited in compliance with tbe statute. We think, however, tbat tbe deposit must be regarded as a deposit in lieu of sureties. Tbe defendant gave bis own personal recognizance, and because tbe surety which be offered could not qualify be gave no surety, and tbe deposit amounted to a deposit of money under tbe statute in lieu of sureties. This was tbe effect of tbe transaction, therefore tbe order forfeiting tbe bail and ordering the money paid into tbe county treasury was regular. Since tbe money was deposited in lieu of sureties it must abide tbe consequences of such deposit. State v. Wisnewski, 134 Wis. 497, 114 N. W. 1113. Tbe contention of respondent tbat no judgment was entered against tbe alleged surety, Mary Brown, and therefore she is not bound by tbe forfeiture, and tbe cases cited in support of this contention, do not reach tbe instant case. There is no question of suretyship here. Although tbe money deposited was furnished by Mary Brown, tbe deposit was the deposit of tbe defendant under tbe statute, sec. 4816, as construed by this court in State v. Wisnewski, supra. Tbe cases are wholly inapplicable to tbe situation here.

It follows tbat tbe court below in this proceeding bad no power to make tbe order appealed from, and no other questions need be considered.

By the Court. — Tbe order appealed from is reversed.