Holmes v. State

• Decision Date: 20 January 1885
• Parties: CHARLES A. HOLMES AND JAMES C. REID, PLAINTIFFS IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

22 N.W. 232

17 Neb. 73

CHARLES A. HOLMES AND JAMES C. REID, PLAINTIFFS IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

January 20, 1885

ERROR to the district court for Johnson county. Tried below before NORVAL, J., sitting for DAVIDSON, J.

AFFIRMED.

Osgood & Harris, A. H. Babcock, and S. P. Davidson, for plaintiffs in error.

William Leese, Attorney General, for the State.

OPINION

REESE, J.

This action was originally brought in the district court against one Con. McGee, as principal, and plaintiffs in error, as sureties, upon a forfeited recognizance. Defendant in error filed its petition, by the district attorney, alleging substantially that a complaint had been filed before the county judge of Johnson county charging the said McGee with the crime of horse stealing; that a warrant was duly issued by the county judge for his arrest, and that he was arrested thereunder by the sheriff of said county and brought before said county judge, when a preliminary examination was had that the county judge, after hearing the testimony, found there was probable cause to believe said McGee guilty of the crime charged, and he was ordered to enter into a recognizance in the sum of $ 500 for his appearance "at the first day of the next term of the district court to be held in and for Johnson county," and that said McGee and defendants entered into such recognizance. A copy of the recognizance is attached to the petition and identified as exhibit "A." The petition further alleges that said McGee was, by the grand jury of the next term of the district court of said county, duly presented, charging him with said crime, but that he failed to appear, and upon his default and the failure of plaintiffs in error to produce him, the recognizance was declared duly forfeited by said court and judgment of forfeiture duly rendered, etc.

To this petition plaintiffs in error demurred upon the grounds: 1. That the court had no jurisdiction of the persons of the defendants; 2. That there was a defect of parties plaintiff; and 3. That the petition did not state facts sufficient to constitute a cause of action. The demurrer was overruled. Plaintiffs in error refused to answer further, but elected to stand upon their demurrer. Subsequently the state dismissed the action as to McGee, and judgment was rendered against plaintiffs in error, who bring the cause into this court by proceedings in error for review.

The questions which are presented by plaintiffs in error will be noticed in their order. The first is, that the recognizance "required the appearance of the accused before the district court of said Johnson county on the 3d day of October, 1882," and not on the first day of the next ensuing term thereof as required by law, and that the recognizance is therefore void on its face, as it does not appear from the face of the recognizance that the third day of October was the first day of the term. The petition alleges that he was required to appear on the first day of the term of court next ensuing. The 3d day of October was the first day of the ensuing term. The court being in session could take judicial notice of the date of its session. While the law requires a defendant to be required to...