City of St. Louis v. Young
| Decision Date | 01 June 1911 |
| Citation | 138 S.W. 5,235 Mo. 44 |
| Parties | THE CITY OF ST. LOUIS v. HARRY YOUNG and HENRY HENNING; HENNING, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis Court of Criminal Correction. -- Hon. Wilson A. Taylor, Judge.
Affirmed.
C Orrick Bishop for appellant.
(1) The bond or recognizance taken by the officer in charge, at the time, of the station was not such a bond or recognizance as he was authorized to take; and he had no power or authority to take any bond except such as was expressly provided for by the ordinance or charter. This recognizance omitted the words "to await his trial upon the charge against him," which are expressly required by the ordinance; and added the words, "and shall also appear on any future day to which this cause may be continued and shall not depart thence without leave being first had and obtained from said police justice," words which the officer had no authority to insert and which words are therefore mere surplusage, and of no binding force or effect. The recognizance being a creature of special statute or ordinance, for a particular purpose could not be based upon any other condition than such as provided for by statute or ordinance. State ex rel. v Fraser, 165 Mo. 260; State v. Lewis, 61 Mo.App. 634; State v. Crowley, 60 Me. 107; State v. Bobb, 39 Mo.App. 550. The surety undertook to enter into such a recognizance only as the law required and was not bound by any conditions which the law did not require nor authorize the officer to insert. (1) The surety then having complied with all the lawful terms of his recognizance, in having the principal in the designated court on the designated day to answer the designated charge, the recognizance was functus officio and the surety was released from all further obligation. State v. Bobb, 39 Mo.App. 543; State v. Lewis, 61 Mo.App. 634; State v. Moore, 57 Mo.App. 662; State v. Mackey, 55 Mo. 51; Allen v. Brewery & Ice Co., 196 Mo. 435. (2) The statute relating to the proceedings before justices of the peace, and by which the procedure before the police justice is prescribed, provides, R. S. 1899, sec. 2759, that upon good cause shown, the justice may postpone the trial to a day certain, in which case he shall require the defendant to enter into a recognizance conditioned that he will appear before the justice at the time and place appointed, then and there to answer the charge against him. The words "and not to depart without leave" were added by an amendment, Laws 1901, p. 141. Prior to the addition of the words "and not to depart without leave" by said amendment, a condition to that effect contained in the recognizance was nugatory. State v. Lewis, 61 Mo.App. 635. And the statute further provided, sec. 2760, that upon the failure or refusal of the defendant to enter into such a recognizance, it was the duty of the justice to commit him; and the form of the recognizance is suggested in Sec. 2762. A failure of the justice to require such a recognizance released the surety upon the preceding recognizance. Allen v. Brewery & Ice Co., 196 Mo. 435. It was clearly the duty, therefore, of the police justice to have required the defendant principal, at the time of the continuance, to enter into such new recognizance, or commit him on his failure to do so.
Lambert E. Walther and A. H. Roudebush for respondent.
(1) The ordinance thus relied on as prescribing the conditions of the recognizance was neither pleaded nor offered in evidence, nor in any other manner brought to the attention of the trial court. That this court will not now take judicial notice of the ordinance. Keane v. Klausman, 21 Mo.App. 485; St. Louis v. Roche, 128 Mo. 541; State v. Gustin, 152 Mo. 108; Tarkio v. Loyd, 179 Mo. 600; Bailey v. Kansas City, 189 Mo. 503; St. Louis v. Liessing, 190 Mo. 490; Canton v. Madden, 120 Mo.App. 404; Spiro v. Transit Co., 109 Mo.App. 5; St. Louis v. Bippen, 201 Mo. 528. (2) The appellants' contention that a new recognizance should have been taken when the case was continued on September 17th, 1906, and that the failure to require it released the surety on the original bonds, is not well founded, and for these reasons: This position of appellant rests on the theory that (1) the charter and (2) the ordinances, of the city of St. Louis have adopted and incorporated in themselves, by reference, the statutes of Missouri relating to proceedings before justices of the peace and that those statutes (R. S. 1899, sec. 2759) require a new recognizance to be taken when the case is continued. In answer to this theory we submit: (a) The charter adopts the statutory procedure only as to appeals. Obviously it has no reference to any procedure before necessity for an appeal arises. It does not undertake to adopt the statutory procedure as to taking of recognizances in the first instance, but leaves that to be regulated by ordinance. (b) The ordinance was not offered in evidence and will not now be judicially noticed. (3) Even if the provisions of the statutes of the State of Missouri relating to proceedings before justices in misdemeanors have been adopted and incorporated as part of the procedure in police court cases, then all of those statutes have been so adopted and must be so applied, and Sec. 2800, R. S. 1889, is sufficient to cure any informalities alleged to exist in the bond in question. State v. Thompson, 81 Mo. 165; State v. Morgan, 124 Mo. 467; State v. Austin, 141 Mo. 481; State v. Eyermann, 172 Mo. 294; State v. Abel, 170 Mo. 59; State v. Epstein, 186 Mo. 99.
This is an appeal by Henry Henning, surety in a recognizance for the appearance of defendant Young in the police court of the city of St. Louis to answer a charge of violating a city ordinance, from a judgment of the St. Louis Court of Criminal Correction on scire facias, enforcing a forfeiture of said recognizance.
Although appellant's abstract of the record states that certain objections were taken by the appellant in the course of this proceeding, and that a bill of exceptions was signed and filed, there is nothing contained in the abstract indicating what the bill of exceptions contained, or that any action or proceeding of the court was preserved or stated in it.
The scire facias was issued out of the Second District Police Court of the city of St. Louis, and is, with the returns thereon, in the following words and figures:
IN THE SECOND DISTRICT POLICE COURT.
State of Missouri, City of St. Louis, ss.
To the Marshal of the City of St. Louis, Greeting:
Whereas on the 15th day of Sept., A. D. 1906, in the city of St. Louis, Harry Young as principal and Hy. Henning as security personally appeared before John Lyon of 9th District, an officer of the city of St. Louis duly authorized by ordinance to take bonds for and in behalf of the city of St. Louis in cases of persons arrested for violation of ordinances of said city; and acknowledged themselves to be each indebted to said city in the sum of two hundred dollars, to be levied upon their respective goods, chattels, lands and tenements.
Yet upon condition, that if the said principal shall personally be and appear before the police justice of the Second District Police Court of the city of St. Louis at the Second District Police Court of said city on the 17th day of Sept., A. D. 1906, at the opening of the said police court on the forenoon of said day, then and there to answer a charge of violating an ordinance of said city, and should not depart thence without leave being first obtained from said police justice, then their recognizance to be null and void; otherwise to remain in full force and effect; and
Whereas, afterwards, on a day subsequent to said 17th day of September, 1906, named in said recognizance, to-wit, on the 25th day of Sept., 1906, to which the hearing of said case had been continued in said court, the said principal not having been discharged from said recognizance, although then and there solemnly demanded by said court to come into court according to the condition of said recognizance, came not, but made default and failed therein, and the said security, although demanded then and there by the said court to bring into court the body of said principal and save his recognizance, came not, but failed therein;
Wherefore, it was considered by said court that the recognizance of said security, as well as of said principal, be forfeited, and
Whereas, The said sum acknowledged as aforesaid from them, the said conusors, yet remain to be levied;
Therefore, we command you to make known to said principal and security, according to law, that they appear before the said police justice of the city of St. Louis, at the Second District Police Court of said city, on the 25th day of Oct., 1906, then and there to show cause if any they have, or anything can say, why the city of St. Louis should not have execution against them of the debt aforesaid, in form aforesaid, by them acknowledged to be due according to the force of said recognizance (now remaining in possession of said court), and have you then and there this writ, with your return thereon how you have executed the same.
Given under my hand this 25th day of Sept., A. D. 1906. By order of the Second District Police Justice.
W. A. CARTER,
Clerk of the Second District Police Court.
And return thereon, as follows:
Return on original:
Executed this writ in the city of St. Louis on this 10th day of Oct., 1906, by delivering a true copy to within named security Hy. Henning.
GEO. P. WEINBRENNER,
City Marshal.
By J. Frank Tevis, Deputy City Marshal.
Return on alias:
Executed the within writ in the city of St. Louis on this 30th day of Oct., 1906. After due...
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