195 N.W. 441 | S.D. | 1923
This is an action against the principal and sureties upon an instrument, in form a bail bond, running to the state. The trial court held that the sureties were not liable upon said
Sections 4598 and 4599, Rev. Code 1919, provide:
“Sec. 4598. Qualification and Justification of Sureties. The qualifications of bail are the same as those in civil cases, and' the sureties niust in all cases justify by affidavit taken before the magistrate, court or judge, that they each possess those qualifications.
“Sec. 4599. Discharge of Defendant. Upon the allowance of bail and the execution of the requisite recognizance, bond or undertaking to the state, the magistrate, judge or court must, if the 'defendant is in custody, make and sign an order for his discharge, upon the delivery of which to the proper officer the defendant must be discharged.”
Manifestly the sheriff had no authority to release Lawrence from custody without a court order, nor had be authority to approve the ¡bond. Section 4601, Rev. Code 1919, provides:
Manifestly there was no literal compliance with the provisions of this section. It is the contention of the state that the bond became enforceable, notwithstanding the non-compliance with the requirements of said sections 4598 and 4599. The argument in substance is that the release of Lawrence -was a sufficient consideration for the bond, and that the requirements of statute n-ot complied with were but directory, and not mandatory. There seems to be a conflict of authority upon this question, -but for the purpose of this case we shall assume, without deciding, the state’s contention to be sound. Nevertheless we must concur in the judgment of dismissal, because under the circumstances the acts and statements of the sureties and the sheriff amounted to a substantial -compliance with the provisions of section 4601, supra, in so far as the sureties are concerned.
The judgment appealed from is affirmed.
iNote. — Reported in 195 N. W. 441. See, Headnote (1), American Key-Numbered Digest, Bail, Key-No. 80, 5 C. J. Secs. 313, 314; (2) Bail, Key-No. 80, 5 C. J. Sec. 313.