Friedline v. State

• Decision Date: 30 January 1884
• Docket Number: 10,737
• Citation: 93 Ind. 366
• Parties: Friedline v. The State
• Court: Indiana Supreme Court

93 Ind. 366

Friedline v. The State

No. 10,737

Supreme Court of Indiana

January 30, 1884

From the Delaware Circuit Court.

Judgment affirmed, at appellant's costs.

G. H Koons and C. W. Moore, for appellant.

F. T Hord, Attorney General, and J. W. Newton, for the State.

OPINION

Hammond, J.

This was an action by the State against Albert Friedline and the appellant, John Friedline, upon a forfeited recognizance taken before a justice of the peace. There was a return of not found as to Albert. The appellant demurred to the complaint for want of facts to constitute a cause of action. The demurrer was overruled. He then answered in five paragraphs, the first being the general denial. The appellee's demurrer to the second paragraph, and its motion to strike out the third, fourth and fifth paragraphs of the answer were sustained. On a trial by jury, a verdict was returned for the appellee. The appellant's motion for a new trial was overruled. These rulings were severally excepted to by the appellant, and the same constitute his assignment of errors in this court.

The complaint states, in substance, that said Albert Friedline was arrested upon a warrant and brought before a justice of the peace in Randolph county, upon a charge of cruelty to animals, made in an affidavit and filed before said justice; that upon a continuance granted by the justice the recognizance in suit was entered into by said Albert Friedline as principal and the appellant as surety, the same being in the penalty of $ 100, payable to the State of Indiana, and conditioned for the appearance of said Albert at the time to which the case was continued; that at the time named Albert failing to appear, he was by order of the justice three times called but came not, and that it was then and there adjudged by the court that said recognizance be forfeited; that the forfeiture of the recognizance was entered of record in the justice's docket, and a certificate thereof endorsed by the justice on the recognizance; that the justice filed the recognizance, so endorsed, with the clerk of the Randolph Circuit Court, and that they were by the clerk recorded in the order book and noted in the judgment docket of said court. It is also averred in the complaint that the recognizance was duly approved by the justice, and that at the time of taking the same, he had jurisdiction of the person of said Albert Friedline and of the charge made against him. A copy of the recognizance is filed with the complaint. The proceedings before the justice of the peace occurred in June, 1881, under the former code.

It is objected to the complaint, in the first place, that it fails to state facts showing that the justice had jurisdiction to take recognizance. We judicially know that as to the offence charged before the justice he had concurrent jurisdiction with the circuit court. 2 R. S. 1876, pp. 484 and 669; 1 R. S. 1876, p. 392, section 79. The complaint also directly avers that the justice had jurisdiction both of the offence and the person of the accused. This was sufficient as against a demurrer. If the facts relating to jurisdiction were not stated with sufficient minuteness, a motion to have the complaint made more specific would have been the correct practice. The objection was not reached by demurrer.

It is also objected to the complaint that it does not allege that, before the forfeiture, the appellant was three times called and required to bring into court the body of the accused in discharge of his recognizance. But the complaint does aver that a judgment of forfeiture was entered by the justice, and this implies that the proper steps authorizing such forfeiture had been taken.

We think there was no error in overruling the demurrer to the complaint.

The second paragraph of the appellant's answer shows that on the day to which the case before the justice was continued, and before the forfeiture of the recognizance, an offer was made, in behalf of the accused, by a responsible person, to file an undertaking, to the approval of the justice, to be bail for stay of execution and payment of the fine and costs that might be assessed against the defendant, but that the offer was rejected by the justice. The averments of the answer are sufficient to show an offer to comply with section 95, 2 R. S. 1876, p. 398, but we think that section applied solely to the practice in the circuit court. No similar provision is found in the act of May 29th, 1852, 2 R. S. 1876, p. 668, regulating the practice before justices of the peace in criminal prosecutions. And even if the action of the justice in the particular complained of was irregular, it did not render the judgment of forfeiture void. It can not, therefore, be collaterally questioned.

There was no error in sustaining the demurrer to the second paragraph of the answer.

The ruling of the court below in striking out the third, fourth and fifth paragraphs of the appellant's answer can not...