Johnstons v. State

DicKinson, J., delivered the opinion of the Court: From the record before us, it appears that the State obtained judgment against the plaintiffs in error, purporting to be founded on a recognizance entered into by them, for the appearance of one of them to answer an indictment then pending against him. We have no statute specially defining the mode of proceeding to enforce the obligation of such recognizors, when the condition is broken; but that such obligation can be enforced, there is no doubt. Yet, in the proceeding to enforce it, the State, as well as every other suitor who seeks legal redress, is bound to adopt some form of remedy allowed or prescribed by law. In the present case, no process or pleading whatever is shown by the record; nor is it shown that the same were dispensed with by the plaintiffs in error, who do not in any wise appear to have had actual or constructive notice of the proceeding against them on the recognizance, without which, according to the repeated adjudication of this Court, no valid judgment could be entered against them. And if, as the argument of the counsel on the part of the plaintiffs seems to suppose, the recognizance was considered as possessing per se all the attributes of a judgment at law, the formal entering of judgment thereupon, as appears to have been done in this case, would be both unnecessary and improper, as tending not only to increase the cost, but also to vex and harass the parties, which the law will not permit, where'no beneficial object is to be thereby attained. It therefore becomes unnecessary for us to inquire whether or not such recognizance possesses in law the efficacy .of a judgment, or whether it does or does not warrant execution against the recognizors, where the condition is not complied with; because it appears affirmatively from the record, that the State has not proceeded in this manner to enforce the obligation of the plaintiffs in error. The judgment appears, therefore, from every view in which it can be legally considered, as wholly unauthorized by law. The judgment of the Circuit Court must therefore be reversed, and this case remanded to the Circuit Court of Hempstead county, to be there proceeded in by that Court, at the next regular term thereof, in accordance with the rule established in the case of Gilbreath vs. Kuykendall, 1 Ark. Rep., 50; and that such other and further proceedings be had therein as may be in conformity with law and the opinion here expressed.