Notargiovanni v. Martucci
| Decision Date | 16 December 1926 |
| Citation | 135 A. 290,105 Conn. 386 |
| Court | Connecticut Supreme Court |
| Parties | NOTARGIOVANNI v. MARTUCCI ET AL. |
Appeal from Court of Common Pleas, New Haven County; John R. Booth and Walter M. Pickett, Judges.
Action by Fannie Notargiovanni against Joseph Martucci and others on a bond for appearance at proceedings under the Bastardy Act in which demurrers to complaint interposed by principals and sureties respectively were sustained and a motion to strike a substituted complaint from the files was granted. Judgment was rendered for defendants, and plaintiff appeals. Judgment set aside and cause remanded, with directions.
Bond and stipulation, made part of substituted complaint and printed in record, may be considered in connection with complaint.
Harry L. Edlin and John Henry Sheehan, both of New Haven, for appellant.
Franklin Coeller, of New Haven, for appellees.
Argued before WHEELER, C.J., and CURTIS, MALTBIE, HAINES, and HINMAN, JJ.
The allegations of the complaint which are material to the demurrers were: That at the appearance of the defendant Joseph Martucci, before a justice of the peace, on or about April 7, 1924, upon a request for continuance, by order of the justice Martucci became bound with sureties, the defendants Salvatore and Louise Martucci, in the amount of $2,000, to Fannie Notargiovanni, the complainant, conditioned that he would appear and answer to the charges in the complaint, before the justice, " at all times designated for the trial of said charges" ; that upon a subsequent requested continuance defendants executed a stipulation that the bond be extended so that the sureties and principal " will continue liability on same in every manner for any continuance of said case and until case is finally disposed of" ; that on May 12, 1924, the defendant having failed to appear in person and his attorney having withdrawn after denial of his motion for a trial by jury of issues of fact on a plea in abatement, the justice of the peace to whom the case had been transferred heard the complaint, found probable cause, and ordered that the defendant become bound in a recognizance in the sum of $2,000 to appear before the court of common pleas " then and there to answer the charges in said complaint and [abide] by the decision of said court thereon, and stand committed until sentence be complied with" ; that the papers were then turned over to the court of common pleas, and after various proceedings the case was tried to the court and final judgment entered for the plaintiff; and that the defendant pay the judgment or in default thereof be committed to jail. The defendant was represented by counsel, but did not himself appear. An execution and mittimus were thereafter issued and returned unsatisfied.
The sustained grounds of demurrer to the complaint were, in substance, that the bond and stipulation in question did not extend to and secure appearance by the defendant Joseph Martucci before the court of common pleas; that because it is not alleged that the bond was called or a mittimus issued by the justice after finding probable cause and binding over, the complaint failed to set forth facts which constitute a forfeiture of the bond; and that the rights of the plaintiff under the bond given were waived by failure to procure such forfeiture and by thereafter proceeding to trial and judgment in the Court of Common Pleas. The sufficiency of the complaint in these respects depends largely upon the construction and legal effect of the bond as therein alleged.
Section 6006 of the General Statutes provides that if the justice court finds probable cause it shall order the accused person " to become bound to the complainant with surety to appear before" the specified higher court " and abide the order of said court, and on his failure so to do shall commit him to jail." While the statute expressly provides only for a bond on binding over, the necessity and propriety of taking a bond or recognizance for the future attendance of the accused at adjourned sessions of the justice court has long been recognized, and such a bond held valid, as well as one given when the accused is bound over to a higher court. New Haven v. Rogers, 32 Conn. 220, 223.
A bond such as is here alleged to have been given undoubtedly imposed an obligation that Joseph Martucci should at all proper times when called...
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Stroman v. Gilbert
...final jurisdiction in bastardy cases; the sole issue before it was the finding of probable cause or lack of it. See Notargiovanni v. Martucci, 105 Conn. 386, 390, 135 A. 290. In this respect, bastardy proceedings resembled our criminal proceedings on a hearing in probable Generally, there i......
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White v. Keilty
...But failing to take the necessary steps to hold him to trial the plaintiff has now no claim on the surety." See Notargiovanni v. Martucci, 105 Conn. 386, 389, 135 A. 290. These decisions make it clear that the obligation of the defendant under the recognizance did not include the duty of se......
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Waters v. Greer
...hearing is the finding of probable cause or the lack of it. Naugatuck v. Smith, 53 Conn. 523, 525, 3 A. 550; Notargiovanni v. Martucci, 105 Conn. 386, 390, 135 A. 290. The preliminary hearing provided for by statute is for the protection and benefit of the defendant; it is a right, however,......
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