160 P. 1181 | Utah | 1916
Lead Opinion
This is an action brought to recover on a recognizance. Judgment was rendered for the plaintiff. The defendants appeal. It is contended that the complaint does not state sufficient facts. So far as material the substance of it is that “on a complaint duly and lawfully drawn, signed and made, charging M. Mellor with the crime of selling intoxicating liquors without a license, and duly and lawfully filed “before a named justice of the peace, M. Mellor was on the 1st of March, 1913, “duly and lawfully arrested,” and that to obtain her release the defendants executed this bond or undertaking : •
“The State of Utah v. M. Mellor, Defendant. Bail Bond (Pending Examination). Complaint upon oath having been made and filed on the-day of-r, A. D. 1913, before F. M. Bishop, a justice of the peace of the No. 2 precinct, of Salt Lake County, State of Utah, charging M. Mellor with*666 the crime of selling intoxicating liquors without a license, and the said M. Mellor having been duly arraigned upon said complaint, and admitted to bail pending examination and hearing thereof, in the sum of three hundred dollars.
“Now therefore, we, P. A. Sorensen and Neis J. Sorensen, do hereby undertake and promise that the above-named M. Mellor, defendant, will appear and answer the charge above mentioned before said justice or in whatever court it may be prosecuted and will at all times hold herself amenable to the orders and process of said justice’s court, and, if held for trial, will appear and render herself in execution of said orders and process and not depart without leave, or until discharged according to law; or if she fail to perform either of the conditions, we will pay to the State of Utah, in lawful money of the United States, the sum of three hundred dollars.
“P. A. Sorensen.' (Seal.)
“N. J. Sorensen. (Seal.)
“Executed and acknowledged before me and approved this 1st day of March, A. D. 1913.
“F..M. Bishop, Justice of the Peace.”
It then is averred that Mellor was “thereupon released,” and that thereafter, on the 29th day of May, 1913, an information was filed in the District Court by the district attorney, charging Mellor with the crime of selling intoxicating liquors without a license; that on the 1st of July, 1913, an order was made and entered by the District Court requiring Mellor to appear for arraignment on the 11th of July; that Mellor failed to appear, and that on the 11th of July the District Court “duly and regularly declared said bond forfeited,” and directed the district attorney to institute proceedings to collect the forfeiture.
“If the offense is bailable, the defendant may be admitted to bail: Before conviction — (1) For his appearance before the magistrate on the examination of the charge, before being held to answer; (2) to appear at the court to which the magistrate shall be required to return the complaint, upon the defendant being held to answer after examination; (3) after information filed or indictment found, either before warrant is issued for his arrest or upon any order of the court committing him or enlarging the amount of bail, or upon his being surrendered by his bail to answer the informa* tion or indictment in the court in which it is filed or found, or to which it may have been transferred for trial.”
Under the familiar rule that sureties are favorites of the law, the liability of these defendants by implication or presumption may not be extended beyond the terms of their un dertaking and contract. While, as is seen, the bond is labeled “bail bond pending'examinaton,” yet, because of the statute and of the language in the body of the bond respecting the defendants’ promises and undertakings, it is apparent that the bond was intended to be a continuing bond, and that the defendants not only bound themselves for Mellor’s appearance before the magistrate on the examination, but also for her appearance in the District Court if she be held to answer after examination. By their own language they undertook and promised that Mellor: (1) “Will appear and-answer the charge above mentioned before said justice. or in whatever court it may be prosecuted”; (2) “will at all times hold-her
Questions are raised as to evidence. The state put in evidence the transcript of the justice’s record in the case of State v. Mellor, transmitted to the District Court on the 22d of April, 1913, which, among other things, showed a verified complaint filed before the justice charging Mellor with selling, without a license, intoxicating liquors in Salt Lake County, the bail bond sued on, the preliminary examination before the justice and binding Mellor over to the District Court and holding her to there appear and answer the charge, the information filed in the District Court by the district attorney on the 29th of May, 1913, the order made by the District Court requiring Mellor to appear for arraignment on the 11th, and minutes of the court made on the 11th that “this being the time heretofore fixed for the arraignment of the defendant herein (State of Utah v. Mellor), the district attorney being present, and neither the defendant nor her attorney being present, on motion of the district attorney, it is ordered that the bond of the defendant be, and the same is, hereby declared forfeited, and the district attorney is directed to bring suit for the recovery of said bond.” It is claimed that though the allegation of forfeiture be held sufficient, yet the evidence does not show a sufficient judgment or order of forfeiture. This, because of the statute (Comp. Laws 1907, Section 5007), which provides:
“If, without sufficient excuse, the defendant'neglects to appear for arraignment or for trial or judgment, or upon any other occasion when his presence in court may be lawfully required, or to surrender himself in execution of the judgment, the court must direct the fact to be entered upon its minutes, and the undertaking of bail, or the money deposited instead of bail, as the case may be, shall thereupon be declared forfeited. But if at any time before the final adjournment of the court, the defendant or his bail appears and satisfactorily excuse his neglect, the court may direct the forfeiture of the undertaking or the deposit to be discharged upon such terms as may be just.”
The order, therefore, is that the judgment of the court below be affirmed, with costs.
Dissenting Opinion
(dissenting).
I think the court, under the facts and circumstances disclosed by the record, abused its discretion in refusing to set aside the forfeiture. I am also of the opinion that we are not precluded by any recognized or known rule of law of this jurisdiction from considering the question.
The only theory upon which the claim can be maintained that appellants are precluded and estopped from assailing the order overruling the motion to set aside the forfeiture is that the order is, in contemplation of law, a judgment from which an appeal could be taken. Our statute defines' a judgment as “a final determination of the rights of parties in actions or proceedings.” Comp. Laws 1907, section 3183. Clearly neither the forfeiture nor the order overruling the motion to set aside was "a final determination of the rights” of either the appellants or the state in this matter. If either of these orders has, or the two combined, have the force and effect of a final judgment or order, and such is the logic of the prevailing opinion, as I construe it, then it necessarily follows that when the order denying appellants ’ motion to set aside the forfeiture was made the state was entitled to have an execution issued and sufficient of appellants’ property not exempt from execution levied upon and sold to satisfy— pay off — the judgment of forfeiture, and the bringing of the suit on the bond was a vain and useless thing. No such doctrine is contended for by the state or expressly announced in the opinion, but the logic of the opinion and the conclusions therein announced seem to me to lead to such a result;
For the reasons stated, I am of the opinion that the judgment of the lower court should be reversed, with directions to that court to grant a new trial.