Dickson v. Mullings

• Decision Date: 11 December 1925
• Docket Number: 4345
• Citation: 66 Utah 282,241 P. 840
• Court: Utah Supreme Court
• Parties: DICKSON v. MULLINGS et al

241 P. 840

66 Utah 282

DICKSON v. MULLINGS et al

No. 4345

Supreme Court of Utah

December 11, 1925

Appeal from District Court, Third District, Salt Lake County; Chris Mathison, Judge.

Application by Charles E. Dickson for a writ of habeas corpus against A J. Mullings and others. From a judgment granting the application and discharging petitioner, defendants appeal.

AFFIRMED.

Hurd &amp Hurd, of Salt Lake City, for appellants.

R Verne McCullough, of Salt Lake City, for respondent.

STRAUP J. GIDEON, C. J., and THURMAN and CHERRY, JJ., FRICK, J., concurring.

OPINION

STRAUP, J.

This is an appeal from a judgment of the district court of Salt Lake county in a habeas corpus proceeding.

The plaintiff alleged that he was unlawfully detained by the defendants, police officers of Salt Lake City. They answered and showed that in November, 1920, plaintiff was indicted "in the state of New York for felonious assault"; that the Fidelity & Casualty Company of New York became his bail and executed a bond or undertaking in the sum of $ 1,500 for his appearance for trial but that he absconded and left the state of New York and failed to appear; that the undertaking provided that plaintiff would appear and answer the charge in whatever court it might be prosecuted, and that he would hold himself amenable to the orders and process of the court, and, if convicted, would appear for judgment and render himself in execution thereof, and that, "if he failed to perform either of these," the company agreed to pay to New York the sum of $ 1,500, and that the undertaking further provided that in case it was forfeited, and upon filing a copy of the order forfeiting the undertaking, together with the undertaking with the county clerk, judgment might be entered against both the principal and the surety for the sum specified in the undertaking, and that execution could forthwith be issued; that in May, 1921, an order was made and entered by the New York court, wherein it was recited that the defendant there, plaintiff here, had failed to appear, and that the company, his surety, had not brought him forward or produced him to answer the indictment, whereupon, on motion of the district attorney, it was ordered that the "recognizance be and the same is hereby forfeited," and that the recognizance, together with a certified copy of the order, be filed in the office of the county clerk, and that judgment be entered thereon according to law against the plaintiff and the company in the sum stated in the undertaking, and that the same were so filed in the office of the county clerk, and that about two years prior to the arrest of the plaintiff the $ 1,500 specified in the undertaking was, in pursuance of the forfeiture, paid by the company to the state of New York; that thereafter the Fidelity Company, in writing, authorized and empowered "policemen of the city of New York or policemen of any other city" in the name, place, and stead of the company to take, seize, surrender, and deliver the plaintiff to the custody of the authorities of New York in exoneration of the company as surety; and that it was in virtue of such authority and no other and without aid of requisition or any other legal process that the defendants arrested and justified the detention of the plaintiff.

Upon such facts and so found by the court, of which findings no complaint is made, the district court held that the plaintiff was unlawfully arrested and detained, and hence released and discharged him.

The defendants, on their appeal, in substance, contend that, upon the Fidelity Company becoming bail for plaintiff in New York, he, in law, was regarded as delivered into its custody; that its dominion was and is continuous of the original arrest and imprisonment by the New York authorities; that, whenever it chose to do so, it had the right to seize the plaintiff and deliver him up in discharge of its undertaking and that it could exercise such right in person or by agent; that, to do so, it had the right to pursue plaintiff into another state and there, in person or by agent, arrest him, and, to lawfully do so, neither requisition nor any legal process was necessary; that, by virtue of its undertaking and contractual obligation to keep and produce the plaintiff whenever his appearance was required, the company, in effect, became his jailer, and, as such, had the right, in person or by agent, at any time and at any place within the United States, without aid of legal process, to arrest and surrender him to the court or to the officer who held him under the original capias when plaintiff was released on bail.

In support of such contention the defendants cite many authorities and cases, particularly, 3 R. C. L. 58; 3 A. & E. Ency. L. 708; 5 Cyc. 126; Taylor v. Taintor, 16 Wall. 366, 21 L.Ed. 287; Knight v. State ex rel. Henry, as reported in 35 Okla. 375, 130 P. 282, L. R. A. 1916F, 361, and notes to cases cited, 363; Campbell v. Reno County, as reported in 103 Kan. 329, 175 P. 155, 3 A. L. R. 178, and notes to cases cited, 180; Carr v. Sutton, 70 W.Va. 417, 74 S.E. 239, Ann. Cas. 1913E, 453; State v. Lingerfelt, 109 N.C. 775, 14 S.E. 75, 14 L. R. A. 605; Ex parte Salinger (C. C. A.) 288 F. 752; Carr v. Davis, 64 W.Va. 522, 63 S.E. 326, 20 L. R. A. (N. S.) 58, 16 Ann. Cas. 1031; In re Von Der Ahe (C. C.) 85 F. 959.

In some of the cited cases there were statutes on the subject; in others not. The claim of defendants is not based on any statute, but is asserted under the common law. It may be conceded that in some of the cited cases it was held that the bail to surrender the principal may arrest him without legal process in or out of the state at any time before forfeiture of the undertaking, some even after forfeiture, but before judgment on the undertaking against the principal and his surety, and some even after judgment and issuance of execution, but before the return thereof. The cases are collated and cited in 3 A. L. R. 189; 6 C. J. 938, and in other texts and cases heretofore referred to; but we do not find any of the authorities or cases holding that such an arrest may be made by the bail without aid of legal process after the forfeiture or judgment has been paid or the bail otherwise discharged. In cases where forfeiture of the recognizance is not final against the surety, and may be remitted or moderated when in the judgment of the court, if vested with such power, good reason therefor exists, we find the matter mooted, but not decided. But it is not averred or shown that the New York court is vested with power to remit or moderate a forfeiture after payment of it, nor that any proceedings for remission or moderation have there been commenced or are pending, or even that any are contemplated.

As a general rule an arrest and surrender of the principal, to be effectual as an exoneration of the surety, must be made before liability of the surety under the bond or recognizance has by forfeiture or judgment become fixed, and may not be done as of right after the forfeiture or judgment has been paid or the surety otherwise discharged.

However as will be seen by the cited texts and cases, the matter is now largely statutory. We have such a statute. Comp. Laws Utah, 1917,...