Black v. State ex rel. McAllister

Perkins, J. Suit by the State, on the relation of Augustus S. McAllister, prosecuting attorney, etc., on a forfeited recognizance. A demurrer to the complaint, for want of a proper party plaintiff and for want of facts, was overruled. It is claimed that the suit should have been brought by the State without a relator. The relator’s name may be struck out • as surplusage. Hawkins v. The State, ex rel., etc., 24 Ind. 288. Answer, in general denial. Trial; judgment for plaintiff. A motion for a new trial was overruled, as was also a motion in arrest of judgment; and these rulings are assigned as errors. It is claimed that the indictment and the recognizance were invalid, and, hence, improperly admitted in evidence. The recognizance was valid. It could hardly be otherwise, under section 790, 2 R. S. 1876, p. 311, touching defective bonds, etc. We see no objection to the indictment. The joinder in error by the appellee is as follows: “ Comes the appellee, and says there was no error in overruling the demurrer to the complaint, or in overruling appellant’s motion in arrest of judgment in said cause. And [591] appellee confesses that the court below erred in overruling appellant’s motion for a new trial.” Upon this confession, the judgment is reversed, and the cause remanded for a new trial, etc.