Crowell v. Circuit Court

Decision Date06 July 1926
Docket Number6273
Citation209 N.W. 539
PartiesA. R. CROWELL, Petitioner, v. CIRCUIT COURT OF BROOKINGS COUNTY, Hon. W. W. Knight, Presiding Judge, Defendant.
CourtSouth Dakota Supreme Court


This matter is before us upon a demurrer to and a motion to quash a petition for a writ of certiorari. The petitioner alleges the arrest and binding over to the circuit court of Brookings county by a justice of the peace of that county of one Norman Emily; that bail was fixed at $750; that this petitioner deposited said sum as cash bail and that said Emily was released from custody; that upon the trial said Emily did appear and was convicted; that the judgment of the circuit court was that Emily should pay a fine of $500 and costs and be committed to the county jail for the period of five months. Said judgment also contained the following direction:

"It is further ordered that the aforesaid fine and costs be paid out of the cash deposit furnished by the said defendant in lieu of bail for his appearance at the regular May, 1926, term of this court, and that the balance, if any, of said cash deposit in lieu of bail be returned to said defendant."

This portion of the judgment is the crux of the petition for certiorari. It is petitioner's contention that his money, deposited to secure Emily's appearance at the trial, cannot be thus summarily applied to the payment of the judgment against Emily, nor at all.

It is urged by the Attorney General that certiorari is not the proper remedy for a review of this matter; that certiorari brings up for review only the record and the questions determined on the record in the trial court; that certiorari reviews merely questions of law, not questions of fact, viz., not the question as to who made the deposit; that petitioner is not a party beneficially interested (Rev. Code 1919, § 2997); that cash bail is considered as having been deposited by the accused; and therefore that the direction above questioned was rightly made.

It is true that as a general rule certiorari does not issue at the behest of one not a party to the proceeding, but in exceptional cases it will issue upon the petition of one interested in the subject matter upon which the record acts. Dexter v. Council, 17 R. I. 222, 21 A. 347; Hemmer v. Bonson, 139 Iowa 210, 19 LRA (NS) 610; Clary v. Hoagland, 5 Cal. 476. We are of the opinion that the facts alleged in the petition show such a direct interest in petitioner in the judgment of the trial court as to entitle him to apply for a writ of certioraru.

Section 4600, Rev. Code 1919, provides:

"A deposit of the sum of money mentioned in the order admitting to bail is equivalent to bail, and upon such deposit the defendant must be discharged from custody."

It must be remembered that this bail was given pursuant to a preliminary examination under the provisions of section 4581, Rev. Code 1919. The purpose of the bail was solely to secure the presence of the accused at the trial in circuit court, and it was in no sense a supersedeas undertaking as upon appeal from a...

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