196 N.W. 294 | S.D. | 1923
This is an appeal from an order overruling defendants’ and appellants’ dem-urrer .to plaintiff’s amended complaint in substance as follows: That on April 15, 1921, a preliminary information or complaint was made and filed in the municipal court of the city of Watertown, Codington county, .wherein! one E. P. Nilson, also known as Edward Nilson, was charged with the crime of unlawfully removing and selling mlo.rtgaged property pursuant to- which a warrant of arrest was issued , out of the municipal court of said city, and said Nilson was duly arrested, and thereafter a preliminary hearing was held in -said court, and said Niilson was bound over to appear at the next regular-term of the -circuit court on July it, 1921, at 10 a. m., to answer said -charge, and was admitted to- bail in the sum. of $3,000, and- committed to- custody of the sheriff of said county until further disposition of said action, or until bail was furnished:: On May 21, 1921, N'ilspn, as principal, and the appellants, Jacob Ritz, C. R. Goss, and1 Nick Doffing,' as sureties, made, executed and delivered to- plaintiff an undertaking in the usual form in the sum of $3,000 for the payment of which said sureties bound themselves jointly a-nd severally. Upon execution and delivery o-f said undertaking said Nilson was released- from custody of the sheriff and., delivered to defendants herein. That -by consent o-f said Nil-son said.action was continued, until the November, 1921, term of the circuit -court;' On November 8, 1921, at opening of November,
The first assignment of error is based on overruling of defendants’ demurrer to the amended complaint, appellants contending that there are defects in the amended complaint in this,: That the complaint does not show presentation of a preliminary information to a magistrate, or that said Nilson was ever brought before a magistrate upon arrest on a charge of having committed a public offense, or ever wiaived a preliminary examination, and that no magistrate has found that a public offense had been com
By assignment 2 appellants urge that a municipal court is not a committing magistrate, and cannot act as such, and has no jurisdiction of cases of felony, and no information charging the commission of a felony can be filed in such court. This we believe without merit, for the reason that section 4463, R. C., provides:
“The judge of the municipal court shall have the powers of a committing magistrate and may order the defendant to answer in any court having jurisdiction of the offense charged'.”
We think it is self-evident that no court can function, as such, except through the judge thereof. As the complaint or information was made and filed in the municipal court it must have been presented to the judge, who, under our statute, was. a committing magistrate. At any rate the allegation was sufficient to show that a charge had been made against the principal. Appellants contend that it is not necessary for the amended complaint to state the exact words of the statute to the effect that a preliminary information or complaint whs laid before a' magistrate. A plain and concise statement of the facts is sufficient. The allegation of the amended) complaint could) not possibly mislead appellants in any way in presenting their defense to the cause of action. 31 .Cyc. 101.
From a careful consideration of this entire record we are convinced that the trial court, in overruling defendants’ and appellants’ demurrer, w|as justified, and that the action of the trial court in this behalf should be, and is, sustained.
Note. — Reported in 196 N. W. 294. See, Headnote (1), American Key-Numbered Digest, Bail, Key-No. 94, 6 C. J. Sec. 246; (2) Criminal>law, Key-No. 207(1), 16 C. J. Sec. 498 (see 1925- Anno.); (3) Bail, Key-No. 89(3), 6 C. J. Sec. 349 (see 1925 Anno.), Pleading, 31 Cyc. 101.