Cameron v. Burger

Mr. Justice Burnett delivered the opinion of the court. In the printed brief of the defendants it is stated that, the whole question for consideration on appeal is whether or not the new matter in the answer constituted a good defense; but on the oral argument here the defendants urged that the complaint does not state a cause of action. We will consider these questions in inverse order. — 462 — 1. The answer alleges that the defendants, here, understood and believed that the defendant, Grace Need, had been surrendered to the sheriff, and that the sureties were no longer liable upon their undertaking for her appearance. This falls short of an exoneration of bail under Section 1664, L. O. L., which provides, in substance, that the defendant on bail may be surrendered either by himself or the sureties at any time before forfeiture of the undertaking, upon delivery to the sheriff of a certified copy of the undertaking of bail which serves as a commitment and authority to that officer to detain the defendant. When this has been done, the court, or judge thereof, before which the defendant is bound to appear, may give an order that the bail shall be exonerated, and upon entry or filing of the order the bail is exonerated accordingly. What the defendants, here, suppose or believe as to the surrender of the defendants in a criminal action does not affect the case. The statute itself provides the manner in which a defendant may be surrendered and bail exonerated, and that is the rule to be observed. It excludes all other methods of reaching that result. 2. The principal contention of the defendants on the brief is that they were released in pursuance of the compromise alleged to have been made with the then district attorney, whereby they expended $450 in sending to Canada for the absconding defendant. Here, too, as in the matter of the exoneration of bail, the statute prescribes governing conditions in respect to the remission of forfeitures of bail, either in whole or in part. A forfeiture having been declared by the court, the defendant may appear at any time before final adjournment, and, if he satisfactorily excuses his neglect or failure to appear when required, the court may direct the forfeiture of the undertaking or deposit to be discharged upon such-terms as may be just, and, further, at any time before judgment against the bail, in an action upon the — 463 — undertaking, the sureties may apply to the court for a remission of the forfeiture, and thereupon the court, upon good cause shown, may remit the forfeiture or any part thereof upon such terms as may be just and reasonable according to the circumstances of the case. Even then the forfeiture, either entirely or partially, can be remitted only upon the payment of the costs and expenses incurred in the proceedings for its enforcement, and if part only be remitted judgment must be given against the bail for the remainder. Such action is a bar to an action upon the undertaking, or, if one be already commenced, it is thereby abated. Sections 1669-1672, L. O. L. The authority to excuse sureties from the enforcement of their undertaking, in any manner or degree, is thus vested in the court, and as a matter of law the authority of every other officer to do the same thing is excluded. 2 Sutherland’s Stat. Const. (2 ed.) §§ 492, 627; Smith v. Stevens, 10 Wall. 321 (19 L. Ed. 933); Rogers v. Kennard, 54 Tex. 30; Conroe v. Bull, 7 Wis. 408. The statutory duty of the district attorney is to prosecute actions against sureties upon their undertaking after forfeiture. He has neither power to admit to bail, to take bail, nor to exonerate bail. As a matter of law, the defendants well knew the limitations upon the authority of the district attorney, and that the only power to release them from their undertaking was vested in the court, upon proper application to that tribunal. They knew they had no right to rely upon the representations of the district attorney, alleged as a defense in their answer. State v. Clifford, 124 Mo. 492 (28 S. W. 5); Whittington v. Ross, 8 Ill. App. 234. The new matter in the answer constitutes no defense to or release of their obligation upon the undertaking quoted. 3. It remains to consider the sufficiency of the complaint as against the objection, urged for the first time at the oral argument of the cause before us, that it does not — 464 — state facts sufficient to constitute a cause of action. This objection may be urged, although for the first time, before this court, and although it is not assigned as error on appeal. Parrish v. Parrish, 52 Or. 161 (96 Pac. 1066). Conceding, without deciding, that the allegation of the complaint about the commencement of the criminal action against the defendant Reed in the municipal court of the City of Portland is equivalent to an averment of the filing of an information under the provisions of Chaper 19, L. O. L., and the issuance of a warrant of arrest in pursuance thereof, the complaint is yet insufficient, in that it does not state that the municipal court heard the matter or made an order of commitment as prescribed in Section 1795, L. O. L. The doctrine applicable to this situation is thus laid down by this court in Malheur County v. Carter, 52 Or. 616, 621 (98 Pac. 489, 491): “True, some information upon some of these essential averments may be had by reference to the recitals in the copy of the undertaking attached to the complaint and by allegation made a part thereof; but an exhibit to a pleading cannot serve the purpose of supplying necessary ánd material averments.” 4. The municipal court of the city of Portland being a court of limited jurisdiction, the facts conferring jurisdiction upon it should be alleged. It should further appear by averment that the court made the order of commitment; that, in pursuance of this order of commitment, the undertaking of bail was given to answer the charge upon which the order was made; and that the defendant therein named was discharged from custody on account of having put in bail as there specified. Section 1668, L. O. L., reads thus: “If, without sufficient excuse, the defendant neglect or fail to appear for arraignment, or for trial or judgment, or upon any other occasion when his presence in court may be lawfully required, or to surrender himself in execution — 465 — of the judgment, the court must direct the fact to be entered in its journal; and the undertaking of bail or the money deposited in lieu thereof, as the case may be, is thereupon forfeited.” 5. In respect to forfeiture, the allegation of the complaint is “that on the 23d day of June, 1903, an order was made by the Honorable A. L. Frazer forfeiting said bond to the State of Oregon.” The date alleged, it will be observed, is nearly four years earlier than the com-^ mencement of proceedings in the municipal court. This may be a clerical error; but, in the absence of any suggestion of a diminution of the record, it is binding upon the court as an allegation. 6. The averment, however, is still further defective, in that it states that the order of forfeiture was made by Judge Frazer. “A judge may exercise out of court all the powers expressly conferred upon a judge as contradistinguished from a court and not otherwise.” Section 958, L. O. L. A judge, as distinguished from a court, is not authorized to declare a forfeiture, as by Section 1668, L. O. L., that must be done by the court, and the fact authorizing the declaration of a forfeiture must be entered upon the journal. For all that appears, the cause may never have been called for judgment or any situation have arisen where the presence of the defendant Reed in court might be lawfully required. 7. The history and identity of the proceedings from the beginning to the giving of the undertaking should be accurately traced in the pleading, and the order of forfeiture should be shown by the journal of the circuit court. The cases of Clifford v. Marston, 14 Or. 426 (13 Pac. 62), and Malheur County v. Carter, 52 Or. 621 (98 Pac. 489), are instructive upon, the principles involved in this case. — 466 — The complaint is insufficient as against the objections urged; but, as it is possible that the pleading may be amended, the cause is reversed and remanded to the court below for further proceedings not inconsistent with this opinion. Reversed.