Killian v. State

• Citation: 205 N.W. 575,114 Neb. 4
• Decision Date: 26 October 1925
• Docket Number: 24935
• Parties: JACK KILLIAN v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

205 N.W. 575

114 Neb. 4

JACK KILLIAN v. STATE OF NEBRASKA

No. 24935

Supreme Court of Nebraska

October 26, 1925

ERROR to the district court for Colfax county: LOUIS LIGHTNER JUDGE. Affirmed.

AFFIRMED.

Garlow & Long, for plaintiff in error.

O. S Spillman, Attorney General, and Harry Silverman, contra.

Heard before MORRISSEY, C. J., DEAN, DAY, GOOD, THOMPSON and EBERLY, JJ.

OPINION

GOOD, J.

Plaintiff in error (hereinafter referred to as defendant) was convicted in the county court of a statutory misdemeanor, and attempted to appeal to the district court, where the appeal, on motion of the state, was dismissed because the recognizance for the appeal was not in conformity with statutory requirements. Defendant brings the record to this court to review the judgment of dismissal.

Chapter 113, Laws 1923, regulates appeals from county courts in misdemeanor cases. Section 1 of that chapter provides, in substance, that no appeal shall be granted or proceedings stayed unless the appellant shall enter into a written recognizance, conditioned for his appearance forthwith, and without further notice, to the district court for such county, and from day to day thereafter until the final disposition of such appeal, to answer the complaint against him and to abide the judgment of the district court. The recognizance given in the instant case was conditioned for the appearance of defendant before the district court in and for Colfax county, on the first day of the next term thereafter and from time to time and from term to term, as may be ordered by said court, until final determination of the aforesaid cause, and not depart the court without leave.

It will be observed that the recognizance is not strictly in accord with the requirements of the statute. Instead of requiring defendant to appear forthwith, it requires him to appear on the first day of the next term, and does not bind him to abide the judgment of the court, as provided by statute. Because of this departure from the statutory requirements, the state contends that the recognizance is void and conferred no jurisdiction on the district court, and that the appeal was properly dismissed.

Defendant contends that the recognizance, though defective in form, was sufficient to confer jurisdiction on the district court, and that his request for leave to file an amended and substituted recognizance, which would strictly conform to the requirements of the statute, should have been allowed. He further argues that the recognizance is sufficient if it appears from the tenor thereof at what court the defendant was bound to appear, and that the court or officer before whom it was taken had the power to require and take such recognizance. In support of his contention he cites section 10043, Comp. St. 1922, and Shupe v. State, 40 Neb. 524, 59 N.W. 100.

Section 10043, supra, provides: "No action brought on any recognizance shall be barred or defeated, nor shall judgment thereon be reversed, by reason of any neglect or omission to note or record the default, nor by reason of any defect in the form of the recognizance if it sufficiently appears from the tenor thereof at what court the party or witness was bound to appear and that the court or officer before whom it was taken was authorized by law to require and take such recognizance."

We think the purpose of the statute was to prevent a defense in an action on a recognizance when it had accomplished its purpose and the party giving it had received and enjoyed the benefits of the recognizance. It is in the nature of an estoppel against setting up a defense to an instrument which the parties themselves have tendered as valid, and which has served the same purpose as though it had been it strict conformity with the statute.

In Shupe v. State, supra, the recognizance was signed by the parties, which was not required by the statute, and the court held that the signatures might be treated as surplusage. In the course of the opinion, language in the nature of dictum is used, which tends to support defendant's position. Defendant cites and relies on a number of cases dealing with appeal bonds in civil actions, but they are based on a different statute and have no application to the question under consideration. He also cites Holmes v. State, 17 Neb. 73, 22 N.W. 232. In that case the recognizance required defendant to appear on a day named, which was, in fact, the first day of the next term of the district court. The statute then in force provided that recognizances should require the defendant to appear on the first day of the next term. It was very properly held that the recognizance was a sufficient compliance with the statute then in force.

Section 1, ch. 113, Laws 1923, is mandatory in its terms and is but an amendment of section 9999,...