40 La. Ann. 719 | La. | 1888
Lead Opinion
The opinion of the Court was delivered by
The State appeals from a judgment of the District Court annulling a previously rendered one, forfeiting the bond of tlie accused and condemning the surety therein to pay the amount thereof, the former failing to appear at the term when he was called to do so, the latter failing to produce then and there his body.
It appears that Hendricks was arrested by a justice of the peace on the charge of larceny, and was released on a bond for $300, with D. M. Jameson as surety therein, conditioned, substantially, that if the above bounden Hendricks shall appear at the jury term of the District Court, at tlie town of Vernon, Jackson parish, commencing on the b-rst Monday of February, 1888, to answer the charge of larceny, and shall there rem ain from day to day and term to term, and shall not depart thence without leave of court, the obligation to be null and void, otherwise, to remain in foree.
It further appears that a true bill was found against said Hendricks on February 11, 1888, and that a bench warrant was issued for bis arrest, which took place on August 18 following, he having failed to appear on August 14 preceding, when the bond furnished by him was forfeited and the surety, Jameson, condemned to pay the amount thereof.
On the day following that of the forfeiture, Janteson took a rule to rescind the judgment nisi on the sole ground that he had never signed the bond, which rule was discharged by the court.
Subsequently, the surety took another rule, averring other grounds for which the judgment of forfeiture should be annulled. This rule was treated as an answer, putting at issue the right of the State to demand the forfeiture.
Prom this judgment the State appeals.
It is manifest that the proceedings below were palpably irregular and unwarranted.
After the judgment of forfeiture had been rendered, instead of asking that it be set aside and the matter reinstated as a motion by the State for the forfeiture, the surety made a solitary defence, as though he had been called upon to answer a rule to forfeit, and that defence was that he had never signed the bond in question. The issu,e then was tried by the court and determined adversely to the surety.
Now, instead of applying for a new trial, the surety took a rule, setting forth technical grounds, tending to affect the regularity of the bond and of the proceedings under which it was furnished, and the State, instead of objecting to this mode of proceeding, prayed that the rule be treated as an answer.
We deem it unnecessary to pass upon any of such grounds, for the reason that it is a well estáblished principle of law, which has never been deviated from, that one who files a special plea is tp be judged on that plea and none other. All else is admitted; and this, apart from the consideration that it may perhaps be claimed as settled, that a surety who, upon the execution of a bond, obtained the release of an accused in actual custody, is estopped from gainsaying the regularity either of the bond or of the proceeding under which it was allowed.
The principle applies whether the proceeding be considered civil or criminal.
Intrinsically, the proceeding may be viewed as civil in character. It is based on a contract under private signature, on which a money judgment can be rendered, which may be executed on the issuance of a fi. fa. It is not a proceeding for the recovery of a fine inflicted for the commission of an offence.
In so saying, we do not lose sight of the fact that it has been treated asa criminal proceeding, in order to determine questions of jurisdiction in cases of appeals from judgment of forfeiture of bail bonds.
The rules laid down in the Code of Practice on the subject of suits and obligations, or acts under private signature, are in consonance with the above announced principle, and may serve as safe guides in the determination of the matter now under consideration.
That Code provides that when the demand is founded on an obligation, or an act under private signature, alleged to have been signed
Now, the signature of the surety, after the denial thereof, was fully proved below, so much so that he does not complain, on this appeal, to the contrary.
It is, therefore, ordered that the judgment appealed from be reversed, and it is now ordered and decreed that the rule of Jameson, the surety, to rescind the judgment declaring his bond herein forfeited, be discharged; that said last judgment remain undisturbed, and that, accordingly, the State of Louisiana recover -of the defendant, D. M. Jameson, the sum of three hundred dollars, with legal interest, from the date of forfeiture, August 14,1888, per annum, and costs in both courts.
Rehearing
On Application por Rehearing.
Counsel for the surety complain that, in construing their rule to set aside the judgment nisi, forfeiting the appearance bond furnished by the accused, this Court entirely misunderstood the true meaning and purport of their pleadings, and they disclaim any intention on the part'/of the surety to thereby deny his signature to the bond which he had signed, his only purpose being to deny any liability on the bond which the court was proceeding to forfeit, for reasons therein set forth.
The language of the rule is very vague and quite inartistic, rendering a proper construction of the same an embarrassing problem. We are, therefore, disposed to accept the construction given to the document by the counsel themselves, and we shall now consider the merits of the points presented in their application for a rehearing, as well as the contention argued in the original brief.
1. Their first point rests on the contention that the forfeiture of the bond was predicated on an indictment, and not on the original bond, and on the denial of the existence of any charge in any court against said Hendricks, and for whose appearance the mover was bound. The bond executed by the surety was conditioned to secure the appearance
This language certainly contemplated his appearance after an indictment had been found against him, or otherwise the whole proceeding would have been worse than a judicial farce. And his failure to appear when called to answer to the indictment was a breach of the essential condition of the bond, for which a forfeiture was legally warranted. The denial of the existence of any charge against Hendricks is presumably intended to refer to the fact that the affidavit before the magistrate was directed against “ James Henry,'1'1 and not James Hendricks, showing nothing more than a misnomer, which could be corrected with the consent of the accused, and that consent is proved by the execution of the bond by both principal and surety, with special reference to the charge as originally made against James Henry. Hence, they are now both estopped from taking any advantage from the misnomer as above stated. The bond before the Court had been executed by James Hendricks, the indictment found by the grand jury was against Jemes Hendricks, and the forfeiture flowed from the non-appearance of Jamies Hendricks, and as he bound himself, so will the surety be bound.
2. In view of the condition of the bond, as above quoted, the objection that it was not forfeited at the term at which the accused was bound to answer, but at a subsequent term, is too trivial for consideration.
3. It is also contended that the bond was not ordered or accepted by the justice of the peace, and that the sheriff accepted the bond without a written order from the magistrate. The minutes of the justice of the peace court show that the bond was ordered and the amount thereof fixed by the magistrate. And his testimony and that of the sheriff both show that the latter was authorized by the justice of the peace to accept ihe bond. A verbal order to that effect was sufficient, and no authority can be invoked to show that a written order would be necessary to legalize such a bond. But as several of these objections involve only alleged irregularities, the surety is estopped from urging them by the fact, as shown by the sheriff’s returns and also by the minutes of the magistrate’s court, that the accused was in actual custody when the bond was executed, and that he was thereby released. Having reaped the advantages and realized the object of the bond, the parties cannot be allowed to avoid its effect or be heard to gainsay the regularity of the proceeding. State vs. Mosley, 13 Ann.
We, hence, conclnde that the objections which go to the substance of the bond are not sustained by the record, and that the complaints tonching alleged irregularities are met by an effective estoppel.
These considerations lead us to the same judgment heretofore rendered by us.
It is, therefore, ordered that our previous decree remain undisturbed.
Rehearing refused.