127 S.E. 495 | W. Va. | 1925
The question presented here goes to the sufficiency of the scire facias. There was a default judgment taken against the sureties on a recognizance bond, and before the end of the term the sureties appeared and moved the Court to set aside the judgment "because the same is of no lawful effect and because of the insufficiency of the notice upon which the same was entered." This motion was overruled. To this action of the Court they come here on writ of error.
The motion made by the sureties goes to the sufficiency of the pleading, and will be treated here as a demurrer.Garland v. Ellis, 2 Leigh 555; Wood v. Commonwealth, 4 Rand. 329. To a consideration of this question it is necessary to state a few of the material facts on which the litigation is based. Harley Smith was held on a hearing before a Justice of the Peace of Greenbrier County, on the 10th day of March, 1923, for a felony, in the penalty of $2,000.00, and he executed a bond with Lewis R. Dean, Hulda E. Dean and Bertha Dixon, as sureties, conditioned for his appearance before *623
the Judge of the Circuit Court of Greenbrier County, on the first day of the May term, 1923, of said Court, to answer an indictment, if any be found against him, and there to remain until discharged by the judge of said court. This bond was in writing, in the usual form of a bond, and duly signed and acknowledged before the said Justice, by the person bound and his sureties, and was returned with the other papers of the case to the Clerk of the Circuit Court of Greenbrier County. It will be observed that it does not purport to be a recognizance. Objection is made by the sureties that under the statute the Justice is authorized to take a recognizance in cases of this kind, and not a bond. Strictly and technically, the statute contemplates a recognizance, an unsigned and officially recorded acknowledgment of conditional indebtedness, not an instrument signed, sealed and acknowledged by the accused and his sureties. This question has been determined inState v. Smoot,
It is contended that inasmuch as Smith was indicted at a special term of the Circuit Court, held before the May regular term, 1923, to which he was held, that the sureties were released. This contention is without merit. The Justice is required under the statute to hold him for the next regular term of the Circuit Court.
We now come to the sufficiency of the scire facias. At the May term, 1923, Smith was called, and failing to appear, *624
the forfeiture was noted on the record, and it was ordered that the clerk of the court issue scire facias on said bond against the principal and his sureties. Objection is made that the sureties were not called. There need be no calling of the sureties to produce their principal, or any entry of their default. State v. Lambert,
The judgment is reversed; the motion alleging insufficiency of the pleading, treated here as a demurrer, is sustained; and the case remanded with leave to the State to sue ut preper scire facias to enforce the forfeiture of the recognizance.
Reversed and remanded.