Kilgrow v. State

SOMEBYILLE, J. — Sections 4863-4868 of the present Code prescribe the form of procedure for the enforcement of forfeitures of undertakings of bail in criminal cases. A condi-, tional judgment is authorized to be taken, under certain circumstances, “ against the parties to the undertaking,” the form of which is given ; and this may be made final by notice of its rendition to each of the defendants, or two returns of “ not found ” by the sheriff, which are made equivalent to personal service. — bode, 1876, §§ 4866-67. If these sections stood alone, we would be disposed to construe them to authorize only joint proceedings against all of the obligors to the undertaking of bail. Being purely statutory in their origin, and summary in their character, they would be subject to a strict construction. We are of opinion, however, that the effect of section 4852 of the Code, which is a part of the same subject-matter, and in juxtaposition as a part of the same context, materially modifies this construction. This section provides that “ the undertaking of bail binds the parties thereto jointly and severally ” for the appearance of the defendant, which is the essence of every such undertaking under our statute. The purpose and effect of this declaration, we think, is to authorize the taking of forfeitures against any one or more of the obligors, including or excluding the principal. — Keipp v. The State, 49 Ala. 337. It was not-error, therefore, to allow judgment to be taken against the sureties, without including the defendant himself, for whose failure to answer the forfeiture was taken. Judgment affirmed.