2 Mont. 426 | Mont. | 1876
Tbe respondents ask to have tbe appeal in this case dismissed for tbe following reasons :
The record shows that the appeal in this case was. taken from the final judgment entered in the court below. This ground of the motion is not then based upon any fact in the record and cannot be sustained.
Second. The right of appeal in civil cases is not given to the Territory of Montana by any statutory provision.
In the case of Langford v. King, 1 Mon. 33, this court held that Montana Territory was a government. Our Organic Act calls it a temporary government. From the nature of this government it must of necessity be a body politic, or artificial person, a corporation. As such, having the right to make contracts, it has the right to sue upon them without any statute empowering it to do so. Catton v. United States, 11 How. (U. S.) 229.
This is an action upon a recognizance to recover the penalty therein specified. Hence it is a civil action and not a criminal proceeding. The Territory having the right to become a party plaintiff to civil proceedings has the same 'rights that any other party in civil litigation has. The statutes of the Territory provide that any party aggrieved may appeal from the district to the supreme court in certain cases. The appeal in this case is from a final judgment and is proper.
Motion denied.
KNOwles, J. This is an action on a recognizance executed by the respondents, Hildebrand, Quinn and Smith, to Montana Territory, in the sum of $1,500, conditioned to secure the appearance of Win. E. Grinnell at the October term of the district court for Jefferson county, at Eadersburg, for the year A. D. 1874. The defendants demurred to the complaint herein, alleging that it was defective in many particulars. Some of the objections will be considered hereafter. The court sustained the demurrer. To this ruling the plaintiff excepted and appeals to this court, assigning this ruling as error. The complaint in substance sets forth that Grinnell, on the 26th day of August, A. D. 1874, was arrested on a complaint filed before James E. Weston, probate judge for the county of Jefferson, Montana Territory, and ar
The complaint further sets forth that Grinnell was indicted for the crime of an assault with intent to commit murder, and that the recognizance was forfeited. •
It is claimed by the respondents that the Territory of Montana is not the proper party plaintiff in this action; that the action should be prosecuted in the name of the county commissioners ol Jefferson county and the district attorney, they being, it is alleged, the real parties in interest.
It is true that the penalties recovered on any forfeited recognizance go to the county. The county may receive a benefit from the action, but it does not follow that the action should be prosecuted in the name of the county commissioners. All criminal prosecutions are prosecuted in the name of the Territory as plaintiff. This recognizance follows the forms prescribed in the statutes of the first legislative assembly of this Territory, and it is doubtful if the act of that assembly on this subject has ever been repealed. But whether it has been repealed or not, it is proper that all recognizances should be executed to the Territory
The respondent alleges that there is a misjoinder of parties de- ' fendant; that Grinnell is not a proper party in an action on this recognizance. This is true, but Hildebrand, Quinn and Smith cannot object to this error. The party improperly joined is the only one who can take advantage of the same.
It is claimed that neither the recognizance or complaint shows any jurisdiction in the officer taking it, and that the recognizance shows no cause for its execution. It is not necessary that the recognizance should show the jurisdiction of the officer taking it, or any cause for its execution. That was the' rule under the common-law practice, but has been abolished by section 257 of our Criminal Practice Act. It is as follows:
“ No action upon a recognizance may be defeated for any defect of form or any omission of recital, condition, or undertaking*430 therein, or neglect of the clerk to indorse or record it; but tbe sureties shall be bound thereby to the amount specified therein. A recognizance may be ‘recorded after execution is awarded.” This statute was enacted for the purpose of abolishing those formal and technical recitals in a recognizance showing the jurisdiction of the officer awarding bail, and that proper proceedings had been had to make it necessary for a party to give a recognizance.
It was not necessary that the seal of the probate court should have been affixed to this recognizance, the justification of the sureties or the approval. The probate judge, in acting as a committing magistrate, does not act as the probate court. The seal of the probate court is required to be affixed to certain writs and proceedings in that court and to none other in the nature of judicial proceedings.
It is urged that the probate judge should have made an order admitting Grinnell to bail. The complaint shows that such an order was made. It was not necessary that it. should have been recited in the recognizance.
The respondents maintain, and the question is not free from difficulty, that the recognizance was forfeited before the time fixed therein for the appearance of Grinnell. The proper construction of the recognizance upon the time fixed for the appearance of Grinnell is, that they undertook that he should appear on the first day of the October term of the district coiu’t for Jefferson county, A. D. 1814. It was thought that this term of court commenced on the second Monday in said October instead of the first Monday, and the parties so recited in the recognizance. It will be observed, upon an inspection of the recognizance, that the defendants did not undertake that Grinnell should appear on the second Monday in October, 1874, but on the first day of the term of the above district court for October of that year. The law was that the district court should open on the first instead of the second Monday. Miren the defendants undertook that the accused should appear on the first day of.-that term, the law came in and said “ this is the first Monday in October.” The defendants undertook to say, contrary to the provisions of law, of which they were bound to take notice, that this was the second Monday in October. Here is an ambiguity which is the subject of judicial construction. I
The crime set forth in the recognizance is an attempt to commit murder. This is an offense under our statutes. Section 191 of our Criminal Laws provides, that “ Every person who shall attempt to commit a public offense, and in such attempt shall do any act toward the commission of such offense, but shall fail in the perpetration thereof,” etc. The punishment of this offense is provided for in this section. Murder is a public offense. The attempt to commit murder is an offense under this section.
While under our statute the jurisdiction of the court taking the recognizance need not be recited therein, nor the proceedings and orders requiring a party to enter into a recognizance for his appearance at court, these facts should appear in a complaint which seeks to recover judgment on such a recognizance.
In Hawkinss v. State, 24 Ind. 288, the court says: “ Without proof showing the facts which authorized the justice to take the recognizance, the finding should have been for the appellant.” If it is necessary to prove such facts it is necessary to allege them. The same reasons that required, under the practice before the adoption of our statutes upon criminal procedure, that the recognizance should show the jurisdiction of the court and the proceedings that warranted the giving of the same, apply to a complaint under our practice to recover judgment on a recognizance. These facts should appear in such a complaint as much as the consideration for a promise to pay a certain sum of money should be set forth in a complaint asking judgment for that sum. In
Judgment affirmed.