Schwarzschild & Sulzberger Co. v. Cryan

Ostrander, C. J. (after stating the facts). That the sureties who give special bail may surrender their principal within eight days after suit is begun upon the bond, is held in Begole v. Stimson, 39 Mich. 288. See Lyman v. Giddey, 96 Mich. 401 (56 N. W. 6); Umphrey v. Emery, 121 Mich. 184 (80 N. W. 14); 3 Comp. Laws, §§ 10047, 10048. The statute (3 Comp. Laws, § 10049) provides that, when a bail bond shall have been taken on the arrest of a defendant, the bail therein may surrender their principal, or he may surrender himself in exoneration of his bail in the same manner before the same officers and with the like effect as in cases where special bail is given. In McNeal v. Van Duser, 142 Mich. 593 (105 N. W. 1109), exoneration of appearance bail was sustained where, as in the case at bar, the surrender was made after suit had been begun upon the bond. It is said by plaintiff in certiorari that in that case the attention of the court was not directed to the provisions of 3 Comp. Laws, §§ 10034, 10035, and that in the case at bar plaintiff lost a trial in the original action by reason of the default in not putting in and perfecting special bail. Section 10034 provides that proceedings in a suit on the bail bond may be set aside if irregular, or stayed on terms, in order that a trial may be had in the original action. Section 10035 provides that, if plaintiff has not lost a trial in the original action by reason of default in not filing and perfecting special bail, the court may stay the proceedings on the bail bond, upon the putting in and perfecting special [380] bail, paying the costs of assigning the bail bond and of the' proceedings thereon, receiving the declaration in the action, and pleading issuably to the merits, so that the original cause may be tried at the same time if the plaintiff shall so elect, and, if the plaintiff has lost a trial by reason of such default, judgment shall be entered on th& bail bond as security. This section relates, it is clear, to proceedings where no surrender of the principal defendant has been attempted and no exoneration of the bail has been applied for. It does not qualify section 10049, which gives the bail the right to be exonerated upon certain conditions. It is not claimed that the enumerated conditions have not been complied with. The two provisions of the statute may stand together, and may be given effect according to the evident legislative intent. The case is ruled by McNeal v. Van Duser. The judgment is affirmed. Bird, Brooke, Blair, and Stone, JJ., concurred.