Zufall v. United States

1 Indian Terr. 638 | Ct. App. Ind. Terr. | 1898

Clayton, J.

One Charles Keifer, having been duly •rested upon a charge for introducing spirituous liquor to the Indian Territory, upon examination was held to iil in the sum of $200 to appear at the December, 1895, rm of the United States court for the Northern district of the Indian Territory. His bail bond for that amount, with the appellants George Zufall and W. T. Escoe as his sureties, was duly executed, and he released. On the 3d day of December, 1895, (the appearance term ), Keifer, the defendant in the criminal suit, and the principal in this bond, being called, made default. Following is the record entry: “3,218. United States vs Chas. Keifer. Intro. Now comes the United States, by its attorney, and the defendant, though duly called, comes not, but wholly makes default. Whereupon -and-are thrice duly called in open court to bring the body of said Chas. Keifer into court, and save their recognizance, but they answer not. It is therefore considered and ordered that the United States of America do have and recover of and from the said defendant, Chas. Keifer, and-and-, his sureties, the sum of- and that they be cited to be and appear at the next regular term of this court, to show why judgment should not be made final, and that a bench warrant issue for the defendant herein.” Thereupon a summons was regularly issued, anc duly served on the sureties in the bond, the appellants citing them to appear on the first day of the next term o: the court, to show cause why judgment should not be ren dered against them. This summons is not made a part o: the record of this case, and is therefore not before us ; but as there has been no objections offered to its form, we as sume that it was regularly issued and served, and is in tin common form of such writs. During the same term of th< court, to wit, on the 30th day of January, 1896, the appel lants appeared and filed a motion to quash the summons, or as the motion calls it, ‘ ‘ the scire facias. ” It is as follows (caption omitted): “ And now comes the defendants Georg* Zufall and W. T. Escoe, and move the court to quash th< scire facias issued in this cause, and for grounds of saic motion state that the facts stated in the scire facias filed ü this cause do not entitle the plaintiff to recover in this cause for the reason that the bond given by these defendants upon which this scire facias is issued was a bond given for the appearance of defendant Chas. Keifer, to answer to the sharge of introducing and selling intoxicating liquors, and that this court .had no jurisdiction over said offense, and said oond is therefore void ; that said bond was not taken and approved as the law directs, and is therefore void ; that the record upon which said scire facias is based is wholly void md insufficient to support a sci. fa. Wherefore the defendants pray the judgment of the court. Denison & Maxey, ittorneys for defendants Zufall and Escoe. On the same Lay the cause was heard by the court, on the motion to [uash the summons. The motion was overruled, to which exceptions were duly saved ; and the appellants standing on heir motion to quash, refusing to further plead, judgment ras entered against them, and an appeal duly taken.

That the United States Court for the Northern district f the Indian Territory had no jurisdiction over the offense f introducing and selling intoxicating liquor in the Indian ferritory, and consequently no power to cause the arrest of, nd admit to bail, parties charged with that offense, is aban-oned by appellants, as is also the position taken by their lotion to quash — that the bond was void because not taken nd approved as the law directs. The only question pre-ented, therefore, to be decided, is, is the record upon which re summons was based void and insufficient to support the idgment?

The statute in force in this jurisdiction (Mansf. Dig.) rovides:

“Sec. 2064. If the defendant shall fail to appear for ■ial or judgment, or at any other time when his presence l court may be lawfully required, or to surrender himself i execution of the judgment, the court may direct the fact to be entered on the minutes, and thereupon the bail-bond o money deposited in lieu of bail, is forfeited.

‘ ‘Sec. 2068. No pleadings are required on the par of the state, but the clerk shall issue a summons against th bail, requiring them to appear on the first day of the nex term of the court to show cause why judgment should no be rendered against them for the sum specified in the bai] bond on account of the forfeiture thereof, which summon shall be executed as in civil actions, and the action procee as an ordinary civil action. ”

By the above section (2068) no pleadings are require by the government. What, then, is to be taken as i1 declaration or complaint? If it ,be true that the entry c the forfeiture made by the clerk upon the record is the con plaint of the state, then the entry made in this case is cleai ly and wholly insufficient. The amount sued for does nc appear, the names of the defendants are not mentionec and nothing is shown connecting them with the particuk bond in suit. Nothing is mentioned in the order except th fact that the defendant in the suit in which the bond we executed had failed to appear when called, and that his ba was forfeited. And yet this is all that is required by tl law. Section 2064, above set out, calls for nothing mor-The language is: “If the defendant fail to appear * * the court may direct the fact to be entered on the minutes and thereupon the bail is forfeited. Under the old practici a scire facias upon forfeiture of a bail bond answered tl the purpose of both declaration and writ, and, if the fac alleged did not constitute a cause of action, would not su tain a judgment by default. Miller vs State, 35 Ark, 27 It is quite clear that the summons mentioned in section 20( is not intended to be the writ of scire facias, because sch facias, besides being a writ, was also a pleading. It wA the declaration, and, by the terms of the statute, in cases A Ms kind, 1 ‘no pleadings are required on the part of the state. ”

What, then, is to be taken as the government’s complaint in this class of cases? In Kentucky, under a like statute, it has been decided that, as the bail bond or recog - lizance itself is the basis of the action, it must, in connec-ion with the order of forfeiture, present a perfect cause of ,ction. Roberts vs Com., 7 Bush, 430; Com. vs Fisher, 2 Duv. 376. And the supreme court of Arkansas, passing up-m this very statute, has adopted the same interpretation. Ihomm vs State, 35 Ark. 327. And, inasmuch as this de-ision of the supreme court of Arkansas was rendered prior o the extension of the statute over the Indian Territory uner the rule laid down by the circuit court of appeals for the lighth circuit in the case of Sanger vs Flow, 4 U. S. App. 2, 1 C. C. A, 56, and 48 Fed. 152, it is binding upon lis court, as being the interpreted law as it came > us. The test, then, in this case, is: Does the bail ond, taken, in connection with the order of forfeiture ntered upon the record, present a perfect cause of stion; or, in other words, do the two, taken togeth- :, make a good complaint at law, of course omitting re caption, the prayer, the signature of counsel, and the ffidavit required by the statue? The bond is not before us, it, inasmuch as no objections were offered to it in the court alow, we assume that is was a valid bail bond in the usual >rm.

In this jurisdiction the requirements for the state-ent of a cause of action in the complaint is contained in lie third paragraph of section 5026 of Mansfield’s Digest, must be a statement, in ordinary and concise language, Lthout repetition, of the facts constituting the plaintiff’s /use of action. The bond on file in the clerk’s office is the strument sued on. It contains: (1) After the caption and the official title of the officer taking it, the obligatio of the principal and his sureties; (2) its conditions; (8) th signature of the parties; (4) the acknowledgment. The ei try of the court, made at the appearance term mentioned i the bond, is that the principal, upon being called, failed t appear, and made default. By the bond and this entry, tb whole contract, with its conditions, its penalty, and i1 breach, is fully set out. We think that so far as the stati ment in a complaint of. a cause of action is demanded, th: fills all the requirements of good pleading under the statu< The most critically drafted complaint could not; state tb cause of action more plainly, concisely, and with less iters tion than is here done. True, there are matters stated 3 the order of forfeiture which it was not necessary to ha\ stated, and, if found in a complaint at law, could have bee stricken out on motion. But treating the bond and order £ a complaint, and no motion to strike out having been mac by the defendants in the court below and no objections ha ing been made to the order on that account, and no exce] tions saved, this court will not now notice them. In ente ing the order, the clerk seems to have adopted the for which was used when scire facias was the proper writ : cases of this kind, and filling only so much of the blanks the form as was necessary to comply with the present sta ute, leaving the balance to stand without erasure. Whi we hold that the order was sufficient, we think the practi here adopted by the clerk is faulty. The court spea' through its record, and vast interests depend upon the co struction of the language used. The misuse of a sing word may defeat the whole intention of the court, a] therefore the orders of the court should be entered in a words, concisely, and without any verbosity. As a matt of uniform practice in this jurisdiction, we suggest the f< lowing form in all cases of the forfeiture of bail bonds a; recognizances hereafter arising;

Action on forfeited ball bond. Practice. Form for entering judgment on forfeited bail bond.

“United States

“No. — — vs

“John Doe.

“Now, on this day, this cause coming on for trial, and íe United States, being present by its attorney,-Esq., mounces ready for trial; and the defendant, John Doe, be-Lg called in open court comes not, but wholly makes default. rherefore the appearance bond (or recognizance) of him, the kid John Doe, is declared forfeited. Whereupon John knith and Richard Roe, his sureties in the said bond (or ¡cognizance), were thrice duly called in open court to bring Le body of the said defendant, John Doe, into court, and bve their recognizance, but they answered not.

“Wherefore it is ordered that the clerk of this court sue a summons, citing the said John Doe and his said sure-js, John Smith and Richard Roe, to appear at the next guiar term of this court, to show cause why a judgment in vor of the United States, for the sum of $-, this being e penalty named in the said bond (or recognizance), shall >t be rendered against them, and that a bench warrant issue r the said defendant- ”

If the forfeiture shall occur after the cause is called r trial or otherwise, the form can be. changed to suit the 'cumstances. The judgment of the United States Court for e Northern district of the Indian Territory is affirmed.

Thomas and Townsend, JJ., concur.