22 A.2d 775 | Conn. | 1941
The defendant, as surety, became bound in the sum of $1000 in a recognizance to the plaintiff on condition that Eugene W. Keilty, the principal, would appear before the next term of the Court of Common Pleas for the judicial district of Waterbury, to be held on the first Tuesday of September, 1938, then and there to answer the charges contained in a bastardy complaint brought by the plaintiff against the principal in the recognizance "and abide the decision of the court thereon." The accused appeared at the trial. The court reserved its decision. Thereafter judgment in the bastardy action was rendered against the accused and it was ordered that he pay $14.50 and the costs of suit and $4 a week for fourteen years from the date of the judgment, that the clerk issue execution therefor monthly, and that he give a bond in the sum of $2000 with sufficient surety to secure the performance of the judgment and to indemnify the town of Waterbury for any expenses incurred in the maintenance of the child. The accused was given prompt notice of the judgment rendered. Execution upon the judgment was issued and this included a direction to take the body of the accused if property could not be found, but it was returned unsatisfied. The bond directed in the judgment has never been given. In this action judgment was rendered that the plaintiff recover the amount stated in the recognizance given by the defendant, $1000, with interest, and the defendant has appealed.
The bastardy statute in effect when this action was brought provided that upon a finding of probable cause the court "shall order such accused person to become bound to the complainant with surety to appear before the next court of common pleas for the county in which the complainant shall dwell, . . . and abide the order of such court, and, on his failure *316 to do so, shall commit him to jail"; with a provision that, if the complainant dwells within the judicial district of Waterbury, the accused shall be bound to appear before the next Court of Common Pleas in that district. General Statutes, 5867. The statutes further provided that if the defendant should be found guilty by the Court of Common Pleas it "shall order him to stand charged with the maintenance of such child, with the assistance of the mother, and to pay a certain sum weekly, for such time as the court shall judge proper, and order that the clerk of the court shall issue execution for the same monthly; and the court shall ascertain the expense of lying-in and of nursing the child until the time of rendering judgment, and order him to pay half thereof to the complainant, and shall grant execution for the same and costs of suit; and may require him to become bound with sufficient surety to perform such orders for maintenance and the expense of lying-in and nursing and to indemnify the town chargeable with the support of such child from any expense for its maintenance, and, if he shall fail to comply with any such order, may commit him to jail, there to remain until he shall comply therewith." General Statutes, 5869.
In Hendee v. Taylor,
In Town of Naugatuck v. Bennett,
These decisions make it clear that the obligation of the defendant under the recognizance did not include the duty of seeing that the accused conformed to the judgment by making the payments required of him. Indeed the terms of the statute clearly show that the legislature contemplated that such payments were to be secured by a bond given on the final hearing and not by the recognizance for the appearance of the accused before the court. The statutes make a distinction between process by execution to collect the amounts ordered to be paid and process by mittimus for the committal of the accused to jail should he fail to comply with the order of the court to file a bond to secure those payments. This distinction is apparent from the fact that imprisonment under them is governed by different and divergent statutes. General Statutes, 5873, 5874; 5801, 2026 et seq. The execution against the body was merely a means to collect the payments due, and failure to apprehend the body of the accused upon such an execution does not make the defendant liable to pay them. If the accused is present when the judgment is given and refuses to give the bond for support which the court has ordered, he is at once amenable to commitment and the obligation of the surety on the recognizance is discharged; but he need not be present at that time; Town of Naugatuck v. Smith,
In Maine and Vermont the obligation assumed under similar bonds in bastardy actions has been held to be broader than we have stated it. Taylor v. Hughes,
It does not appear from the record in this case that any mittimus for the committal of the accused was ever issued, and consequently there was no basis for a conclusion that the condition of the recognizance had been broken. We are placed in a somewhat difficult position in disposing of the appeal because counsel for the defendant has treated the issuance of the execution, with its direction for a body attachment, as the equivalent of a mittimus for the committal of the accused. For aught that appears the mittimus might still issue and we shall disregard this misconception of the issues. We therefore hold that the trial court was in error in giving judgment for the plaintiff upon the case as presented to it.
Our conclusion renders it unnecessary to consider the specific errors assigned except as they might be involved in further proceedings. Upon the failure of the accused to be forthcoming to be taken on the mittimus, the obligation of the defendant would become fixed and satisfaction of that obligation would discharge him from further liability. Brett v. Murphy,
The statute contemplates that the payments under a judgment for the support of the child should be made to the mother, the recognizance sued on ran to the mother, and any damages recovered on it should be paid to her, or, if she is a minor, to a guardian of her estate. Rutkowski v. Connecticut Light and Power Co.,
There is error and the case is remanded to be proceeded with according to law.
In this opinion the other judges concurred.