Kiser v. State

• Decision Date: 28 November 1859
• Citation: 13 Ind. 73
• Parties: Kiser v. The State
• Court: Indiana Supreme Court

13 Ind. 73

Kiser v. The State

Supreme Court of Indiana

November 28, 1859

From the Fountain Circuit Court.

The judgment is reversed. Cause remanded.

R. A Chandler, for appellant.

OPINION

Davison J.

This was an action bye the state upon a forfeited recognizance.

The complaint alleges that William Hill and David Kiser, on the 23d of April, 1855, appeared before the Judge of the Warren Circuit Court, and acknowledged themselves jointly and severally to owe, &c., to the state, 200 dollars, to be levied, &c., if default should be made in the following condition, to-wit: That the said William Hill should be and appear before the Fountain Circuit Court on the first day of the next term thereof--it being the August term, 1855--to then and there answer the state of an indictment for forgery and abide the order of the Fountain Circuit Court, and not depart therefrom without leave thereof. Then the recognizance was to be void, &c. It is further alleged, that at the February term, 1857, of said Court, William Hill was duly called, but failed to appear in discharge of his recognizance; and that thereupon David Kiser was duly called by order of the Court, and then and there ordered by the Court to bring into Court the body of William Hill, and save his recognizance; and failing to do so, the recognizance was then and there declared forfeited. It is also averred that William Hill at no time appeared in said Court in discharge of his recognizance, according to the condition thereof, &c.

The appellant, who was the defendant, demurred to the complaint; but his demurrer was overruled, and thereupon the Court rendered a judgment that the state recover, &c.

The complaint, it is insisted, is defective on two grounds, to-wit--

1. Because it fails to show that the recognizance, or a copy of it, was filed with the pleading.

2. Because it is not shown that Hill and Kiser were called, and a forfeiture taken, at the August term, 1855, of the Fountain Circuit Court--the term at which Hill, in accordance with the condition of the recognizance, was bound to appear.

The statute says: "If without sufficient excuse, the defendant neglect to appear for trial or judgment, or upon any other occasion when his presence in Court may be lawfully required according to the condition of his recognizance, the Court must direct the fact to be entered upon its minutes, and the recognizance of bail is thereupon forfeited." And--"The prosecuting attorney may, at any time after the adjournment of the Court, proceed by action against the bail upon the recognizance. Such action shall be governed by the rules of civil pleading so far as applicable." 2 R. S. p. 366, §§ 47, 48.

In reference to the first ground of demurrer, we have a statutory rule...