Capos v. Clatsop County

• Decision Date: 10 October 1933
• Citation: 144 Or. 510,25 P.2d 903
• Parties: CAPOS v. CLATSOP COUNTY.
• Court: Oregon Supreme Court

25 P.2d 903

144 Or. 510

CAPOS v. CLATSOP COUNTY.

Supreme Court of Oregon

October 10, 1933

Department 1.

Appeal from Circuit Court, Clatsop County; H. K. Zimmerman, Judge.

Action by George Capos against Clatsop County. From a judgment for defendant, plaintiff appeals.

Affirmed.

This is an appeal by the plaintiff from a judgment of the circuit court in favor of the defendant, entered in an action for money had and received, wherein the plaintiff sought to recover the sum of $2,500 which he had deposited as bail money in the justice court for the precinct of Astoria Clatsop county, after an information had been filed in that court charging him with the crime of setting up a still for the purpose of manufacturing intoxicating liquor.

A. W Norblad, of Astoria (Norblad & Norblad, of Astoria, on the brief), for appellant.

F. M Franciscovich, of Astoria (Hesse & Franciscovich and F. P Leinenweber, Dist. Atty., all of Astoria, on the brief), for respondent.

ROSSMAN Justice.

The complaint alleges that March 5, 1928, an information of felony was filed in the justice court for the precinct of Astoria, accusing our present plaintiff of the crime of setting up a still for the purpose of manufacturing intoxicating liquor; that later he was arrested and brought before the justice of the peace; that, having deposited the sum of $2,500 cash in lieu of bail, he was released from custody; that no preliminary examination occurred; that no order was entered holding him to the grand jury; that March 10, 1928, the grand jury of Clatsop county indicted him of the crime of setting up a still for the purpose of manufacturing intoxicating liquor; and that March 28, 1928, the justice of the peace, "without any right or warrant or authority of law, or otherwise, and without the knowledge and consent of said George Capos," delivered to the county clerk of Clatsop county the aforementioned sum of $2,500. We quote further from the complaint:

"Plaintiff alleges that said crime alleged in said indictment and the said crime alleged in said information of felony filed in the justice of the peace court as aforesaid was and is the same identical crime charged and none other. Plaintiff further alleges that he was never arrested upon the charge contained in said indictment, nor was he ever arraigned upon the charge contained therein, nor was he ever called upon or notified or required to plead thereto, nor did he ever enter any plea or answer thereto, nor was any plea or answer ever entered in the journal or record of said court, nor was he ever informed of the nature and cause of the accusation against him and given a copy thereof as required by the Constitution and laws of Oregon. Plaintiff further alleges that neither he personally nor by counsel voluntarily or otherwise, verbally or in writing, appeared in any manner in said circuit court in the action. ***"

Continuing, the complaint avers that neither the plaintiff nor any one on his behalf deposited any bail money in the circuit court; that no time was ever set by the circuit court for the trial of the charge stated in the indictment; that the circuit court never issued any warrant for his arrest; that no order was ever made by that court fixing the bail upon the indictment until after the forfeiture of bail which the complaint alleges occurred in the following manner: April 4, 1928, the circuit court made the following order:

"This matter coming on to be heard on the 4th day of April, 1928 and it appearing to the court that an indictment was returned by the Grand Jury of Clatsop County, Oregon dated March 10th, 1928, charging the above named defendant George Capos, with the crime of having a still set up for the purpose of manufacturing intoxicating liquor; and it further appearing to the court that April 4th, 1928, was set as the date of trial upon said indictment; Now, on this day, came the State of Oregon by F. P. Leinenweber, District Attorney, and the defendant, George Capos, failed and neglected to appear for trial and no sufficient cause or excuse having been shown by said defendant George Capos, for his failure to appear and the defendant, George Capos, though duly called three times at the Court House door by Harley J. Slusher, Sheriff of Clatsop County, came not, but made default;

"And it appearing to the Court that the defendant, George Capos, had heretofore by an order of this court duly made in its Journal being admitted to bail in the sum of $2,500.00 and that the defendant George Capos, had heretofore duly presented cash bail in accordance with said order in the sum of $2,500.00 which was duly accepted and filed with the clerk of Clatsop County, Oregon;

"Now therefore, it is ordered and adjudged by this court that said undertaking be and the same is hereby forfeited to the State of Oregon; and it is further ordered that the fact of non-appearance of the defendant, George Capos, be entered in the Journal of this court; and, upon motion of F. P. Leinenweber, District Attorney of Clatsop County, Oregon, that a bench warrant issue for the apprehension and arrest of said defendant.

"Dated this 4th day of April, A. D. 1928.

"C. H. McColloch, Judge."

After the entry of that order, the circuit court, according to the complaint, indorsed upon the indictment the following:

"State of Oregon, County of Clatsop, ss.

"The within named defendant may be admitted to bail in the sum of $5,000.00.

"C. H. McColloch, Circuit Judge."

"State of Oregon, County of Clatsop, ss.

"It is hereby ordered that a bench warrant issue for the apprehension of the within named defendant.

"Dated this 4th day of April, 1928.

"C. H. McColloch, Circuit Judge."

April 6, 1928, the county clerk, in compliance with the aforementioned order of bail forfeiture, so the complaint alleges, delivered the bail money to the county treasurer of Clatsop county, who later disbursed it in the manner required by section 15-904, Oregon Code 1930. The complaint concludes with an averment that the plaintiff's demand for the return of the $2,500 was refused. The defendant's demurrer to the complaint, on the ground that it did not allege a cause of action, was sustained.

It will be observed that the complaint alleges that the defendant justifies its possession of the $2,500 bail money by the order of bail forfeiture, and it will also be observed that the present proceeding constitutes a collateral attack upon that order. The basis of the plaintiff's contentions that he is entitled to the return of the $2,500 may be summarized thus: (1) Since he neither deposited in the circuit court the $2,500 bail money which he had previously deposited in the justice court, nor authorized its transfer, and since the time is long past within which the charge in the justice court may be prosecuted, he is entitled to its return; (2) since the order of bail forfeiture entered by the circuit court does not affirmatively recite that he was arraigned and entered a plea in the circuit court, the proceedings which culminated in the bail forfeiture failed to meet the demands of due process of law.

We shall first consider the contention that the justice court had no authority to transfer to the circuit court, after the plaintiff's indictment by the grand jury, the bail money previously deposited with the justice court. Section 13-2205, Oregon Code 1930, which is a portion of the chapter of our laws making provision for the preliminary examination of those brought before the justice courts charged with the commission of a felony, directs that, if the justice adjourns his court before affording the accused a hearing, he must discharge the accused "upon his giving bail or depositing money in lieu thereof, as provided in this Code, as security for his appearance at the time to which the examination is adjourned." Section 13-1314, Oregon Code 1930, provides: "Bail is put in by a written undertaking, executed by two sufficient sureties, and acknowledged before the court or magistrate taking the same. It may be substantially in the following form:-1. Before indictment:-'An order having been made on the _____ day of _____, 19___ *** that C. D. be held to answer upon a charge of *** we *** do hereby undertake that the above-named C. D. shall appear and answer the charge above mentioned, in whatever court it may be prosecuted. ***"' Section 13-1328 provides: "The defendant, at any time after an order admitting him to bail, instead of giving bail, may deposit with the clerk of the court at which he is held to answer *** the sum of money mentioned in the order. ***"

The words "before indictment" appearing in the form of bail undertaking suggested in section 13-1314 indicate that this form is to be used when the magistrate releases the accused upon bail before the preliminary examination has begun or has been concluded, but the words "an order having been made *** that C. D. be held to answer" indicate that the form is intended for use only after an order has been entered holding the accused to answer to the grand jury. If the form is intended for use in the latter instance only, then no form is provided by our Code for the convenience of a magistrate who releases an accused upon bail when a delay intervenes before a preliminary examination begins. Such delays are common. It would seem strange that the Code would provide a form for bail undertakings where the accused is held to answer, and also forms for use after an indictment has been returned, and yet fail to provide a form to serve a purpose which constantly presents itself; that is, the release of an accused where a delay occurs before the preliminary hearing. If bail deposited in the justice court merely assures the accused's appearance in that court, as the plaintiff contends, then...