Campbell v. The Board of County Commissioners of The County of Reno

• Decision Date: 06 July 1918
• Docket Number: 21,415
• Citation: 103 Kan. 329,175 P. 155
• Parties: MRS. D. E. CAMPBELL, Appellant, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF RENO et al., Appellees
• Court: Kansas Supreme Court

175 P. 155

103 Kan. 329

MRS. D. E. CAMPBELL, Appellant, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF RENO et al., Appellees

No. 21,415

Supreme Court of Kansas

July 6, 1918

Decided July, 1918.

Appeal from Reno district court; FRANK F. PRIGG, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. ARREST--Released on Bond--Surrender of Defendant by Bondsmen Ineffective. A person who is out on bail under a criminal charge in one county, and who is arrested by a constable from another county under a criminal charge filed in the latter county, cannot be taken from the custody of the constable without his consent, by the sureties on the bail of the person charged, and be surrendered to the sheriff of the first county, so as to release such sureties.

2. SAME. Under the circumstances mentioned in the first paragraph of this syllabus, after being released from the charge filed against him in the latter county, it is the duty of such person to appear at the proper time for trial in the first county, and it is the duty of the sureties on his bail to produce him for that trial.

3. SAME--Special Questions Refused--No Error. It is not error to refuse to submit to a jury special questions which would not, if answered, elicit any fact that could affect the judgment to be rendered.

Lee Monroe, of Topeka, for the appellant.

H. E. Ramsey, and E. T. Foote, both of Hutchinson, for the appellees.

OPINION

MARSHALL, J.:

The plaintiff appeals from a judgment rendered against her and in favor of the defendants for costs. The plaintiff seeks to recover $ 2,000 which had been deposited with the clerk of the district court of Reno county by O. H. Dorr in lieu of bail for the appearance of one John Sanders, who was then charged with grand larceny. This is the second time this action has been before this court. (Campbell v. Reno County, 97 Kan. 68, 154 P. 257.) There a judgment in favor of the defendants was reversed, and the cause was remanded for further proceedings. A detailed statement of the facts was made in the former opinion. On the trial from which the present appeal was taken, the jury answered special questions, a part of which are as follows:

"Q. 5. Did the constable from Cowley county have Sanders in his custody at the time it is claimed a surrender was made? Ans. Yes.

"Q. 6. Did the constable from Cowley county, at the time it is claimed a surrender was made, with a view of effecting a surrender, give Sanders his liberty and allow him to pass into the custody of Carl Duckworth through a surrender by O. H. Dorr? Ans. No.

"Q. 7. Were the officers from Reno county holding Sanders all of the time he was in their custody, on the date in question, for the constable from Cowley county? Ans. Yes."

Other than as modified by the special findings of the jury, the facts now presented are the same as those presented on the former hearing in this court.

1. The first question presented by the plaintiff (who has succeeded to Dorr's rights) is: "Could Sanders be effectively surrendered so as to entitle Dorr to reclaim his deposit without the consent and concurrence of the Cowley county constable?" The plaintiff argues that the fact that John Sanders was in the custody of the constable from Cowley county could not and did not prevent Dorr from surrendering Sanders to the sheriff of Reno county, and thereby release the $ 2,000 which had been deposited with the clerk of the district court of that county. If Sanders was surrendered, so that the sheriff had control and custody of him, and could have held him as against the constable, then the $ 2,000 was released. Before the surrender, or attempted surrender, Sanders had been arrested by the constable from Cowley county, and, under the findings of the jury, was continuously thereafter in the custody of that constable. At the time of his arrest by the constable, Sanders was out on bail. The sheriff had no right to take...