104 Kan. 221 | Kan. | 1919
The opinion of the court was delivered by
In an action upon a forfeited recognizance, the answers of the bail alleged that after the default of the principal they had surrendered'him to the sheriff; that he had thereupon pleaded guilty to the charge against him, had been sentenced by the court, had served his sentence in the county jail, and had been discharged; and that his absence at the term of court when the recognizance was forfeited did not occur with their knowledge, consent or connivance, but was caused by his serious illness while in the state of Wyoming. They of
The plaintiff appeals, and assigns as error the ruling setting aside the order of forfeiture in the criminal action, and the order releasing the bail from liability for less than the $300 named in the recognizance.
One objection urged to the course followed by the trial court is that the recognizance fixed the liability of the bail for the full amount and interest from the date of forfeiture, and it is insisted that the trial court, in effect, held the defendants liable upon the recognizance, but erroneously fixed their liability at less than $300.
As we construe the judgment, however, the court, having sustained the'motion to vacate the judgment of forfeiture, held that in view of the surrender of the principal to the sheriff, and the fact that he had entered a plea of guilty, had been sentenced, had served his term and had been discharged, justice and fairness required the release of the bail from all liability upon the recognizance; but the court imposed the condition that they pay the costs of the proceedings.
In both briefs, section 8063 of the General Statues of 1915 is referred to. That section provides, in substance, that the bail may be discharged after forfeiture and before final judgment on the recognizance, by surrendering his principal, paying costs, and presenting a satisfactory excuse for the default of the principal. Section 8067 declares that the action on the recognizance shall be, as far as applicable, governed by the rules of civil pleading.- When the court had vacated the judg
Indeed, it is difficult to see how the court could in justice have held otherwise. As suggested in defendants’ brief, this court made a similar order in The State v. Williams (Supreme Court Journal “D D,” p. 147), after a judgment of conviction had been sustained, the decision sustaining the judgment being reported in 60 Kan. 837, 58 Pac. 476, and on rehearing in 61 Kan. 739, 60 Pac. 1050. There the recognizance was forfeited, and subsequently an action was commenced in the lower court upon the recognizance. The bail filed a motion in this court asking that the order of forfeiture be vacated, assigning as reasons that the principal honestly believed that the time had not arrived for him to surrender himself, and further, that they had caused his arrest and delivery to the sheriff. It also appeared that after they procured his arrest, he escaped from the sheriff; that they again caused him to be arrested, surrendered him to the sheriff, and that he was duly imprisoned in the penitentiary to serve his sentence. On these facts this court sustained the motion of the bail for their discharge, and set aside the order of forfeiture, but ordered the bail to pay the' costs of the application. (See Journal “DD,” supra.)
It is probably true that the statute (Gen. Stat. 1915, § 8063) was not intended to cover the precise situation which arose in the present case, but that the language of the statute and its general policy are broad enough to authorize the trial court to do justice in such a situation, we have no doubt.
The judgment is affirmed.