Kirschbaum v. Mayn

*326 MR. CHIEF JUSTICE CALLAWAY delivered the opinion of the court. The pleadings and agreed statement of facts tell us that Herbert Craig, being in the custody of the sheriff of Meagher county charged with the commission of a felony, was arraigned upon the information on September 7, 1923, pleaded not guilty, and his bail was fixed at $2,000. With him in court were his attorney, Mr. Angelí, and the plaintiff, Aurelia Eirschbaum. Being desirous of obtaining his liberty and unable at that time to give a written undertaking, Craig requested the court to permit him to deposit with the clerk of the court two Liberty bonds of the third issue, of the par value of $1,000 each, in lieu of putting in bail by written undertaking. He promised and agreed that if the court would permit him to do so he would within a reasonable time and as soon as John Eirschbaum should come to White Sulphur Springs to sign a written undertaking, cause to be substituted in place of the Liberty bonds a proper and sufficient undertaking as bail. The plaintiff understood the situation fully; in fact it was she who procured and gave to Craig the bonds that he might put them up in lieu of a written undertaking; she advised and counseled him to make the deposit of the bonds and aided and assisted him in so doing; he would not have done so except for her conduct and assistance. Craig was then an employee of plaintiff and her husband. The court, Hon. William L. Ford presiding, upon *327 tbe faitb, representations, promise and agreement made by-Craig, granted tbe request and the bonds were thereupon deposited with F. H. Mayn, the clerk of the court. It was understood by the court, by Craig, and the plaintiff, at all times, that the deposit of the bonds “was a substantial equivalent or substitute for actual money or cash to the amount of $2,000 so fixed as bail” and that the Liberty bonds at the time of the deposit were “substantially the equivalent of $2,000 money or cash.” Upon the deposition of the bonds with the clerk, Craig being then in open court and in custody, he “was forthwith by direction or order of the court, duly given, granted his liberty and discharged from custody, although no certificate to that effect was made.” No written undertaking was ever substituted for the bonds, but on or about the twenty-seventh day of November, 1923, Mr. Angelí, counsel for Craig, in Craig’s behalf and at the request of the plaintiff, offered to the clerk of the court at White Sulphur Springs, and upon his refusal to accept the same, to Judge Ford at Harlowton (district court being in session in Wheatland county with Judge Ford presiding), a written undertaking in the form required by statute, the sureties whereon could qualify. When the written undertaking was offered Craig was not in court; indeed, he had left the court’s jurisdiction; his whereabouts were then and ever since have been unknown to his counsel. Never since he deposited the bonds has Craig surrendered, or offered to surrender, himself into custody. Judge Ford refused to accept the written undertaking. Craig did not appear for trial upon March 16, 1924, that being the date when his case was set for trial, and he has never appeared since. On February 16, 1924, Aurelia Kirschbaum, the plaintiff, began an action in claim and delivery against F. H. Mayn, as clerk of the court, and F. H. Mayn individually, to recover the possession of the bonds or the sum of $2,000, the value thereof, in case delivery could not be had. On March 10, 1924, defendant answered. He admitted his possession of the bonds, and alleged that he retained the same as clerk and not otherwise. *328 He pleaded the facts under which the bonds were delivered to him by the prisoner and set forth plaintiff’s participation in the transaction. Defendant also pleaded estoppel as against the plaintiff. When Craig did not appear for trial upon March 18, 1924, the court made an order setting forth that he had failed to appear for trial upon the day set which constituted failure and breach of the obligation and recognizance entered into by him by his deposit of the bonds with the clerk; whereupon his default was ordered entered in the minutes and the deposit made by him declared forfeited to the value of $2,000, and it was ordered that judgment be rendered against him in favor of the state of Montana for that sum of money; it was directed that execution issue against the bonds for that sum, accruing interest, and all proper costs of sale under the writ. The order is still in full effect. Subsequent to the entry of the order a judgment was rendered in favor of the state against Herbert Craig as defendant for the sum of $2,000, with interest, and it was directed that the same be satisfied out of the bonds. Plaintiff replied to defendant’s answer on April 29, 1924. On June 27, 1924, plaintiff and defendant agreed in writing upon the facts. Trial followed, Judge Lynch sitting for Judge Ford, with the result that the court ordered judgment entered in favor of F. H. Mayn as clerk of the court, but rendered judgment to the effect that the plaintiff recover from F. H. Mayn the possession of the bonds, or the value thereof in the sum of $2,000, in case delivery of the bonds could not be had, together with costs. From this judgment the defendant F. H. Mayn has appealed. The plaintiff has moved to dismiss the appeal. We deem the motion without merit. It is overruled. 1. A Omission to bail is the order of a competent court or magistrate that the defendant be discharged from actual custody upon bail. (Sec. 12133, Rev. Codes 1921.) The taking of bail consists in the acceptance, by a competent court or magistrate, or legally authorized officer, of the undertaking of sufficient bail for the appearance of the defendant, according to the terms of the undertaking, or that the bail will pay to the state a specified sum. (Sec. 12134, Rev. Codes 1921.) *329 By the terms of section 12154, it is provided: “The defendant, at any time after an order admitting him to bail, instead of giving bail, may deposit with the clerk of the court in which he is held to answer the sum mentioned in the order, and, upon delivering to the officer in whose custody he is a certificate of the deposit, he must be discharged from custody.” The “sum mentioned in the order” means a sum of money. (Sec. 9831, Rev. Codes 1921.) It is conceded, as it must be, that the order fixing bail was lawful, but it is vigorously contended by counsel for plaintiff that the deposit of the Liberty bonds was not equivalent to a deposit of $2,000 in money. Apparently it is upon this theory that plaintiff’s case and the judgment in her favor rest: the court evidently concluded that the receipt of the Liberty bonds was not authorized by statute, and therefore the order of the court directing their receipt by the clerk was unlawful, and their retention by the clerk was unlawful; upon this premise the clerk did not receive them in his official capacity, because that would be unlawful, but in his private capacity and therefore he became answerable to the owner only in his private capacity. The judgment of the court was wrong upon two grounds: first, it is specifically stipulated by the parties, as we have seen, that the deposit of the Liberty bonds was the substantial equivalent of actual money or cash to the amount of $2,000, and it does not now lie in the mouth of the plaintiff to deny it. Secondly, upon the admitted facts, the plaintiff is estopped to deny that the court did not have authority to receive the bonds as bail; if it were admitted that the court did wrong in accepting them the plaintiff will not be heard to assert the fact to her advantage, for she is in pari delicto. She aided and abetted Craig in securing his release from custody by means of these very bonds which she furnished him for that purpose. Had it not been for her the court would not have been persuaded into an action which she now attempts to assert is wrong. She will not be permitted to take advantage of her own wrong. (Sec. 8746, *330 Eev. Codes 1921.) Tbe law will leave tbe plaintiff where she has voluntarily placed herself. The following authorities are in accord, although we do not commit ourselves to the full length to which some of them go: Bryant v. City of Bisbee (Ariz.), 237 Pac. 380; Moss v. Summit County, 60 Utah, 252, 26 A. L. R. 206, 208 Pac. 507; Sauskelonis v. New Brittain, 89 Conn. 298, 94 Atl. 368; Cooper v. Rivers, 95 Miss. 423, 48 South. 1024; Smart v. Cason, 50 Ill. 195; State v. Reiss, 12 La. Ann. 166. 2. Nor is it material that the sheriff did not receive “a certificate of deposit,” in accordance with section 12154, supra. This would be sacrificing substance to form. The fact is that the prisoner was in court in the custody of the sheriff. When the prisoner pursuant to his own request delivered the bonds to the clerk upon the court’s direction, he was “forthwith by direction or order of the court, duly given, granted his liberty and discharged from custody,” the sheriff was directed to release the prisoner and did so. The prisoner did not need the certificate, for, so far as he was concerned, its object was attained, he was at liberty. The fact that the sheriff did not demand a certificate for his files (which would disclose his authority for releasing the prisoner) is not that which concerns this plaintiff. 3. But it is urged by counsel for plaintiff that the agreement was that the bonds were to remain as bail only until a written undertaking should be furnished, which should be within a reasonable time, “and as soon as John Kirschbaum came to town to sign up the bond.” It is said this agreement was kept faithfully by Craig in that his counsel presented to the clerk and to the judge a bond in the form required by the statute, the sureties whereon could qualify. Why Judge Ford did not approve the undertaking we do not know. Possibly it was because Craig was not then within the jurisdiction of the court. Whatever the reason was, the fact remains that he did not accept the undertaking, and the bonds continued to stand as bail. When Craig was called for trial, *331 came not but made default, tbe bonds became forfeited, as the court adjudged. Also it is asserted by plaintiff’s counsel that when this action was begun the court had not forfeited the bail and had not rendered judgment against Craig, and the ease should be decided upon the facts as they existed when the action was begun. The action, as will be remembered, was commenced on February 16, 1924, while the order of forfeiture and judgment were not made until March 18, 1924. The agreed statement, however, has furnished to the court the facts necessary to a decision upon the merits. Incidentally if it were necessary to have pleaded those facts, which it was not, the situation considered, they might have been supplied by supplemental pleadings. 4. It is agreed by the parties that the defendant received the bonds as clerk of the court and not otherwise. He did so at the court’s direction, and in view of the conceded facts it cannot be said that the court’s action was unlawful. The court erred in rendering judgment against the defendant in his individual capacity. The judgment in favor of the defendant in his official capacity is not attacked; it stands unquestioned. The judgment is reversed with directions to the district court of Meagher county to enter judgment in favor of the defendant F. H. Mayn. Reversed. Associate Justices Holloway, Galen, Stare and Matthews concur.