11 P.2d 702 | Kan. | 1932
The opinion of the court was delivered by
These were two criminal actions where a bond was forfeited by the court and a third action that was brought by the state to collect on the forfeiture. Judgment was for plaintiff. Defendants appeal. The three cases have been consolidated in this court.
The facts are simple. R. E. Emerson was arrested by federal authorities and charged with violating the Volstead act. He gave bond to appear in federal court. While he was at liberty on this bond he was arrested in two different cases by the state authorities
Pursuant to the orders forfeiting the bonds in the two criminal cases suit was instituted by the state to collect the amount of the two bonds. The facts were set out in the pleadings about as they have been set out here. In their answer the bondsmen claimed that the facts as recited constituted a valid excuse for their not having Emerson before the district court of Butler county, and that the order forfeiting the bond and finding that Emerson had no excuse for not appearing, was void. The answer further stated that the bondsmen could and would produce Emerson before the state court as soon as he should be released from the federal penitentiary, which it was alleged would not be later than eighteen months from March 12, 1931. The prayer of the answer was that the cause should be abated and case continued till eighteen months from March 12, 1931, or that judgment should be for defendants notwithstanding the failure to continue. The state filed a motion for
We conclude that it was an abuse of discretion on the part of the trial court to order a forfeiture of the bonds in the two criminal cases. The order will be that all three cases be remanded to the district court with instructions to this effect: If Emerson presents himself or his bondsmen deliver him to the jurisdiction of the district court of Butler county within ten days of the date of his discharge from the federal penitentiary, then the order of forfeiture in the two criminal cases and the judgment in the civil case shall be set aside and held for naught. In case, however, Emerson does not present himself or his bondsmen do not deliver him to the jurisdiction of the district court of Butler county within ten days of his discharge from the federal penitentiary, then the order of forfeiture in the criminal cases and the judgment in the civil case will be affirmed. It is so ordered.