Rheinhart v. State

The opinion of the court was delivered by Brewer, J.: This was an action on a forfeited recognizance, and the first question arises on the overruling of a demurrer to the petition. The petition alleged the arrest of the defendant Rheinhart, his examination before a justice, the order requiring him to give bail, his failure to do so, the commitment, the giving of the recognizance to the officer, its acceptance by him, and the consequent release of the defendant from custody, his failure to appear at the district court for trial, and the forfeiture. It also gave a copy of the recognizance. The specific objection is, that it does not contain a copy of the order of the court declaring a forfeiture, nor does it allege that such order was “duly made.” Neither of these is necessary. Sec. 121 of the civil code, upon which the latter part of the objection is based, refers only to judgments and orders of courts and officers of special jurisdiction, and has no application to the orders and judgments of the district coui’t, which is a court of general jurisdiction. Nor is the forfeiture in any sense “a part of the written instrument which is the foundation of the cause of action.” The recognizance is a separate and complete instrument. The forfeiture is an independent- matter, and the evidence that the condition of the recognizance has been broken. It may be necessary to establish a liability on the recognizance, as demand is necessary to establish a liability on a note payable on demand; but it is no part of the instrument. The demurrer was properly overruled. [323] The answer contained a general denial, and also a special denial under oath that the justice before whom the preliminary examination was had, and the'deputy-sheriff who took and approved the recognizance, were legal officers. Upon the trial certain testimony was admitted over the objection of the plaintiff in error, defendant below. To most of the testimony thus admitted, no specific ground of objection was raised. Under those circumstances error cannot be affirmed: Walker v. Armstrong, 2 Kas., 199; Wilson v. Fuller, 9 Kas., 176; Luke v. Johnnycake, 9 Kas., 511; Marshall v. Shibley, 11 Kas., 114. Other testimony was objected to on the ground that being part of the original case it was admitted in rebuttal, and also because it was received after the testimony had once been closed. These are matters largely within the discretion of the trial court, and unless it is apparent such discretion has been abused are not grounds for reversal. There is here no evidence of any abuse. (Laws of 1872, p. 329, § 1.) These cover all the matters of evidence noticed by counsel for plaintiff in error in his brief. It may also be said that the motion for a new trial is based solely upon the ground that the findings of fact are not supported by the testimony, and that the conclusions of law are contrary to law. Under these circumstances it is apparent that the rulings of the court in the admission of evidence must be taken to be correct. Notwithstanding this we have carefully examined the testimony, and see no error in the admission of evidence. As to the finding of the court that the justice and deputy-sheriff were legal officers, it is abundantly sustained by the testimony. As to the justice, it appeared that he was elected and qualified in 1870, and had continued to act .without objection ever since. It appeared also that he was re-elected in 1871 and again in 1873. The bond filed at this last election does not appear on the face of it to have been approved. Still, under his prior election he held until his successor was qualified, (Const., art. 3, § 12,) and hence was still a justice dejure as well as defacto. As to the deputy-sheriff, it appeared that this was during the [324] second term of the sheriff, that the written appointment of the deputy was made and filed at the commencement of the first term, and no other was on file in the office of the county clerk, though the deputy-sheriff testified that at the commencement of the second term he received a written appointment and filed’it in the county clerk’s office; but it also appeared that this party had been regularly acting as deputy - slieriff during both the first and the second term. Under those circumstances it is evident that he was at least an officer defacto, and as such his acts were binding. "We see no error in the proceedings, and the judgment must be affirmed. All the Justices concurring.