State v. Gorley

Wright, C. J. It is claimed that the court below erred* in overruling defendants’ demurrer, and in rendering judgment for the^ state on the evidence above recited. We think the demurrer was correctly overruled. Chapter 198 of the Code, requiring the prosecuting attorney to sue out a scire facias, where default has been made, even if 'applicable to recognizances before justices, which may well be doubted, does not negative or preclude the right to proceed by action on the bond. This proceeding, under the old practice, would be technically an action of debt, and there can be no question but what at common law such recognizances might be enforced in such an action. The usual course, it is true, is to proceed by scire facias, and that is the one which is primarily contemplated by the Oode, but it is not the only one. This same question arose in the ease of Commonwealth v. Green, — 55 — 12 Mass. 1, and it was there held, that debt would lie upon a recognizance to the state, as weE as scire facias. See, also, The People v. Kane, 4 Denio, 531, State v. Inman, 7 Blackf. 225. By our practice, bail is put in by a written undertaking, executed by one or more sufficient sureties, and acknowledged before the court or magistrate taking the same. When this is thus allowed, as shown by the order of the court, the bond is filed with the clerk, and it thus becomes a part of the record, and of record. At common law, the mode was for the court or magistrate taking the same, to state at large to the bail, the obligation and its condition, to which they assented. Of this, a short minute was made at the time, but it need not be signed. Prom this minute, a formal record of the recognizance was prepared. Upon the filing of this, it became a part of the record of the court. 1 Ch. Or. L., 90 et seq. In either method, the recognizance becomes equally a matter of record. In either ease, it amounts to an obligation of record, being entered into before a court or magistrate duly authorized, with condition to do some particular act, as to keep the peace, appear to answer a criminal accusation, to pay a debt, or the like. 2 Black. Com., 341. And whether debt or scire facias shall be brought thereon, we do not see how the rights of the conusors could be changed. What would be a good cause in excuse of the default complained of, in one case, would be equally good in the other. If the principal could be surrendered by his bail, in satisfaction of the undertaking, in one instance, so he could in the other. The one becomes as much of a verity as the other. And, again, there are strong reasons why the action of debt should be maintained, unless it is negatived expressly, or by fair implication, by the statute. On scire facias, you may not attach the ' property of the conusors, and thus secure to the state the amount fixed by the undertaking. In the action of debt, or in the ordinary course by petition under our law, an attachment may be had, and the remedy thus be complete and- perfect. An individual would have a right to thus secure his debt pending his action, in a suit brought on — 56 — a bond or obligation filed in court for Ms benefit, and we cannot believe that tbe remedy of tbe state in this respect, was designed to be any more restricted. In some states, we are aware, it has been held that debt would not lie in civil causes, where the statute gave a remedy by scire facias. Lane v. Smith, 2 Pick. 282; Pierce v. Reed, 2 N. H. 359; Crane v. Keating, 13 Pick. 339. But such cases will be found to be based on reasons that do not apply under our law. In some of the states, the scire facias is required to be served upon the bail, within one year after final judgment against the principal. And under such statute of limitations, it was held, to be reasonable and fit that a party should be held to proceed within that time, and not allowed to select a remedy under which a longer time was given for the commencement of the suit. By our law, however, no such distinction exists, and the argument founded thereon, therefore falls. So, also, in other cases, where the bond was made payable to the sheriff in a civil cause, it was urged, that if debt could be maintained where scire facias was provided for, the sheriff could at his will bring the action, or withhold the authority to sue, to the prejudice of the party in interest. But here the bond is made payable to the state, and she, by her officers, can alone enforce its penalty. We conclude, then, that the remedy by action on the recognizance in the nature of an action of debt, is not taken away by this chapter of the Code ; and this being the only objection urged against the petition, the court below did not err in overruling defendant’s demurrer. The next inquiry relates to the liability of the defendants, under the proof made. We give no weight to what is said with reference to the erasures made by the justice. 'These erasures, whether made at one time or another, cannot materially affect the question. He would have no power to enter up a judgment on the bond, the amount being beyond his jurisdiction, and his saying that the security should stand bound to the state on the bond, would in no manner assist to fix his liability. The material questions are, whether the allegation contained in the justice’s transcript, that “ Gorley — 57 — did not appear,” can be contradicted by showing that he did make an appearance in law; and if it cannot be so contradicted, whether this entering of his default, is sufficient to make the bail liable. As to the first point, we think the record as to the non-appearance of Gorley must be taken as verity. It was the duty of the justice to enter his failure to appear; and having determined and entered the non-appearance, we do not think it can be contradicted in this proceeding. If this can be done, then, upon the same principle, his record as to any other fact might be contradicted. State v. Burton et al., in this court. But does this record show a default, within the meaning of the law ? - The accused, by the terms of his bond, and the law, was bound to appear before the justice when his presence was lawfully required. The transcript does not show affirmatively that the state appeared, or sought to further prosecute the complaint; on the contrary, if we are allowed to consider the testimony of the justice and the other witnesses, such appearance is expressly negatived. The failure of the state, however, to appear, could not excuse the defendant. But is he so required to appear, until he is called, or his presence demanded by the court? Can his default be properly entered, until he is called? "We think not. And while we are by no means inclined to apply strict rules to the proceedings of these inferior courts, yet we think this is a matter of such substance and materiality, that it cannot be dispensed with. We would not require a compliance with any technical form in the entry of such defaults, but the record should show that, in some method, the defendant had an opportunity to know that his presence was demanded and required. Did this record contain anything, from which it might be reasonably inferred that Gorley had been called, we should be inclined to overrule the objection; but when it is entirely silent in this respect, we cannot think it would be a safe rule to hold the bail liable. We need hardly say", that by the practice of all our courts, a calling is deemed necessary before a default can be entered; and that the fact that a party was so called, precedes the entry of the default. Now, it is true, that if a — 58 — party is present in person, but makes no response to tbe call, he cannot claim that he was not in default. The law requires that he shall not only be present when called, but in order to save his default, he shall make what is termed a technical appearance. So, on the other band, tbe record should not only show tbat be was not present, but tbat be was called. This is tbe means of legally testing and determining whether be is present. Tbe court cannot otherwise tell tbat be is in default. And “so it appears to have been determined in Park v. The State, 4 Geo. 329; State v. Grigsby, 3 Yerg. 280; White v. State, 5 Yerg. 183; State v. Humphries, 4 Blackf. 538. And tbe reason of tbe rule becomes more apparent, wben we consider tbat by tbe Code, tbe accused may appear by attornej1-, without being personally present, wben charged with a misdemeanor, as in this instance. In view of this fact, let us see tbe effect of a contrary rule. And without sanctioning tbe introduction of tbe parol testimony received by the court below, we can as well illustrate it by a brief reference to tbe facts here developed, as in any other way. It is proved that tbe state did not appear- by any of ber officers ; nor was any person present to prosecute tbe complaint. Tbe attorney for tbe defendant is present, however, prepared to answer for him, and defend Mm, against tbe charge preferred. This fact be may not have made known, nor was it necessary tbat be should do so, until something was done that required tbe defendant to answer, or to take some step to meet tbe prosecution against Mm, on tbe part of tbe state. Tbe defendant is not called ; bis representative has no intimation tbat anything is being done in tbe case, but tbe justice enters on bis docket tbat tbe accused did not appear, without ever doing anything tbat required him to answer or make ' known bis presence. To bold tbat a default could be properly entered, under such circumstances, would, to our minds, be making courts of justice tbe instruments of fraud and oppression, instead of tribunals where tbe legal rights of tbe citizen may be protected. The true rule in sucb cases is, tbat tbe record should show tbat tbe presence of tbe accused was demanded and — 59 — required by the court, and not stop with averring that he was not present. Without giving any force to the parol evidence, we hold that the justice’s docket did not show such a default as fixed the defendant’s liability on tbe recognizance. And while this is an action on the bond, and not a proceeding by scire facias, yet as already intimated, tbe same proof by tbe record, should be required of tbe state ; and this record should show upon its face, 'that the state is entitled to have the recogni» zance estreated. 2 Ohio, 248. Judgment reversed.