Erickson v. City of Marshfield

• Decision Date: 20 January 1920
• Parties: ERICKSON v. CITY OF MARSHFIELD ET AL.
• Court: Oregon Supreme Court

186 P. 556

94 Or. 705

ERICKSON v. CITY OF MARSHFIELD ET AL.

Supreme Court of Oregon

January 20, 1920

Department 2.

Appeal from Circuit Court, Coos County; John S. Coke, Judge.

Action by Andy Erickson against the City of Marshfield and another both as City Recorder and individually. Judgment for plaintiff, and defendants appeal. Affirmed.

On September 6, 1917, a complaint was filed in the recorder's court of the city of Marshfield against D. L Foote, charging him with the offense of "unlawfully keeping and maintaining a place as a common nuisance" within the limits of that city. A warrant was issued, upon which he was arrested and brought before that court, where his bail was fixed at $100 cash, which was furnished by the plaintiff, to whom the defendant John W. Butler issued the following receipt:

"Marshfield September 6, 1917.

"Received from Andy Erickson one hundred dollars bail for the appearance of D. L. Foote in the recorder's court of the city of Marshfield, Coos county, Oregon.

"$100.00.

[Signed] John W. Butler."

As a result Foote was released, and later that specific charge against him was dismissed, and another was filed against him wherein it was alleged that he did "wrongfully and unlawfully sell intoxicating liquor to Edmund Smallwood contrary to the provisions of Ordinance No. 787." Foote was tried on the second charge, convicted, and sentenced to pay a fine of $100, and to serve 10 days in jail. The court then made an order that the money deposited as bail in the first cause should be retained and used as bail in the second. Foote then escaped from the jurisdiction of the court, was duly called, but failed to appear, and the $100 bail deposited on the first charge was declared forfeited on the second.

There is no proof that the plaintiff was ever consulted about the matter, or that he ever agreed that the money which he furnished as bail on the first complaint should be used on the second charge. After a demand for the return of his money, and the refusal to pay, the plaintiff brought this action to recover the $100 evidenced by his receipt.

The defendants contend: First, that when the plaintiff deposited the money as bail for Foote, it then and thereby became the latter's property, and after he was tried and convicted on the second charge they had a right to take the money deposited as bail in the first instance, and apply it to the payment of his fine on the second charge; and, second, that the issuing of the receipt, coupled with the taking of $100 from Erickson as bail money, was an illegal act, and for such reason the parties are in pari delicto, and the plaintiff ought not to recover.

At the trial the defendants filed motions for a judgment of nonsuit and for a directed verdict, which were overruled, and the plaintiff moved for a directed verdict. This last motion was sustained, upon which judgment was entered in favor of the plaintiff, and the defendants appeal.

J. T. Brand, City Atty., of Marshfield, for appellants.

C. F. McKnight, of Marshfield, for respondent.

JOHNS, J. (after stating the facts as above).

The city of Marshfield was incorporated under the provisions of chapter 251 of the Special Laws of Oregon for 1905. Its recorder is vested "with the powers and jurisdiction of a justice of the peace," the marshal "with the powers of a constable," and each of them in the discharge of his respective duties "shall be subject to all the general laws of the state of Oregon." Section 1660, L. O. L. reads thus:

"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, or in which the action is pending or the judgment appealed from is given, the sum of money mentioned in the order; and upon delivering to the officer in whose custody he is, the clerk's certificate of such deposit, he must be discharged from custody." Section 1663 provides:

"When money has been deposited in lieu of bail, if it remain on deposit at the time of a judgment for the payment of money, the clerk must, under the direction of the court, apply the money in satisfaction thereof, and after satisfying the same must refund the surplus, if any, to the defendant."

By section 1666 it was enacted:

"If money have been deposited in lieu of bail, and the defendant, at any time before the forfeiture thereof, surrender himself to the officer to whose custody he was committed at the time of making the deposit, in the manner provided in section 1664, the court or judge thereof must order a return of the deposit to the defendant, upon producing the certificate of the officer showing the surrender, and upon reasonable notice of the application to the district attorney."

Section 1668 provides:

"If, without sufficient excuse, the defendant neglect or fail to appear for arraignment, or for trial or judgment, or upon any other occasion when his presence in court may be lawfully required, or to surrender himself in execution of the judgment, the court must direct the fact to be entered in its journal; and the undertaking of bail or the money deposited in lieu thereof, as the case may be, is thereupon forfeited."

In the instant case the bail money was...