Clelland v. People
| Decision Date | 01 October 1878 |
| Parties | CLELLAND et al. v. THE PEOPLE. |
| Court | Colorado Supreme Court |
Appeal from District Court of Fremont County.
THE appellants, Clelland and Toupain, were sureties on the recognizance of John L. and Lewis Camblin, who had been recognized for their appearance to answer and indictment for grand larceny at the district court of Fremont county. The statute provided that the November term of that court should be begun on the second Monday in November. On the 16th of November, 1876, the recognizance was forfeited and scire facias issued returnable to the April term following. The defendants demurred; the demurrer was overruled and the defendants pleaded, among other pleas to the writ, nul tiel record, on which issue was joined. Judgment went for the penalty of the bond, and the sureties appealed to this court. Leave was prayed in this court by the attorney-general, after joinder in error to file a supplemental record showing an amendment in the scire facias in matter of substance, since the appeal.
Messrs WELLS, SMITH & MACON, for appellants.
Mr. A J. SAMPSON, attorney-general, for appellees.
The act of February 8, 1876, fixing the terms of court in the third judicial district (Sess. Laws, 11th Sess., p. 67), provides that the terms of the district court of Fremont county are to be held on the third Monday of April and the second Monday of November of each year. The scire facias avers a forfeiture of the recognizance at a term of said court begun and held on the 16th day of November, 1876. There being no authority for a term begun on that day, any proceeding had at a term so begun and held would be illegal and void.
While it is true, as contended for by the attorney-general, that section 20, article 6 of the Constitution empowered the district judges to fix the terms of their courts until they should be fixed by the general assembly, yet this provision of the Constitution is not to be construed as in conflict with the act of 1876 fixing the terms of the district courts in the third district, but as additional thereto, empowering the several district judges to order a term as necessity or convenience might require, at a time other than that fixed by statute; and in this view, if the judge of that district did by order, fix a term of the district court to be begun and held for the county of Fremont on the 16th day of November 1876, this fact should affirmatively appear...
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