Pickelsimer v. Glazener

• Decision Date: 26 May 1917
• Docket Number: (No. 505.)
• Court: North Carolina Supreme Court
• Parties: PICKELSIMER et al. v. GLAZENER et al.

(173 N.C. 630)

92 S.E. 700

PICKELSIMER et al.

v.GLAZENER et al.

(No. 505.)

Supreme Court of North Carolina.

May 26, 1917.

Appeal from Superior Court, Transylvania County; Harding, Judge.

Action by J. H. and C. W. Pickelsimer against J. M. Glazener and others. Judgment for plaintiffs, and defendant sureties appeal. Judgment set aside as to the sureties, and retained as to the principal defendant

Plaintiffs brought this suit on September 12. 1914, to recover the sum of $543.95, alleged to have been fraudulently converted to his own use by defendant J. M. Glazener, who was their partner in the book business. The defendant was arrested by the coroner on September 14, 1914, under proceedings in arrest and bail taken for that purpose, and he, and his codefendants, J. M. Allison and M. J. Glazener, as his sureties, executed an undertaking for his discharge from arrest as required by the statute, and J. M. Glazener was released. He was afterwards arrested to await a warrant in extradition proceedings from South Carolina, and was imprisoned in the county jail by the sheriff of the county. The condition of the defendant's bond is as follows:

"If the defendant is discharged from arrest, he shall at all times render himself amenable to the process of the court during the pendency of this action and of such process as may be issued to enforce the judgment therein."

While the defendant was in the jail, there was a conference in the law office of the defendant's attorney, between said attorney, the defendant, and J. M. Allison, one of his sureties, and the South Carolina officers, and as they left the office R. N. Nicholson, the deputy sheriff who then had defendant in custody, and who was jailer and had charge of him as deputy sheriff and jailer, signed a receipt, which was delivered to defendant's attorney, and by which he acknowledged that the surety J. M. Allison had surrendered the body of the defendant J. M. Glazener to him, and that he had taken him in exoneration of his bondsmen in the above-entitled case. In connection with the giving of this receipt, the court found the following facts:

"M. J. Glazener was not present at that time, and did not then in person surrender or attempt to surrender the defendant to the said R. N. Nicholson. After the conference above referred to, and the signing of the paper, R. N. Nicholson took the defendant to the county jail. At the time the receipt was presented to the said Nicholson to be signed he did not read it, but inquired of defendant's attorney what it was, and the attorney replied that it was just a paper showing that he held the defendant in jail, without bond, for the officers of South Carolina. That R. N. Nicholson can read and write."

The court further found as facts: "On the following morning the bondsmen, M. J. Glazener and J. M. Allison, procured from the clerk of the superior court a certified copy of the undertaking signed by bondsmen and the defendant in the arrest and bail proceedings, and went to the office of the sheriff, where they tendered the copy of said undertaking to the sheriff and offered to surrender the defendant. At the time the copy of the undertaking was tendered to the sheriff the defendant was in jail, and not in the custody of the bondsmen. The sheriff declined to receive the copy of the undertaking, on the ground.that he himself was a party to the action in which the defendant had been arrested, and in which the undertaking was given. Thereupon the bondsmen left the certified copy of the undertaking in the office of the sheriff of the county. That immediately after the sheriff had refused to receive the certified copy of the undertaking aforesaid the bondsmen and their attorney went with the coroner to the county jail. When they arrived there, the jailer was absent. Defendant's attorney, with the consent of the jailer's wife, who was there living in the jail, obtained the keys from her, went to the cell, in company with the coroner, and the said bondsmen, opened the cell, and took the defendant out of it into the corridor of the jail, and there stated to the coroner that they delivered to him the defendant, together with a certified copy of the undertaking. That the corridor of the jail was open. That after the bondsmen stated to the coroner that they delivered the prisoner to the coroner, together with the certified copy of the undertaking, the coroner took the prisoner back into the cell and locked the cell and returned the keys to the wife of the jailer, and notified the wife of the jailer that he had relocked the cell with the defendant inside."

On April 6, 1915, the bondsmen notified plaintiffs that during the April term of the superior court they would move before the judge thereof for their exoneration as bail. This motion was submitted on April 17, 1915, and Judge Long, who presided at that term, declined at that time to hear it, but continued it to the next term. The bondsmen then renewed their motion before Judge Harding at July term, 1915, and asked that it be heard before the trial of the case. This motion was refused, though the jury had not been impaneled, but the court stated that it would hear and decide the motion after the trial, and treat it as if heard before. The jury returned a verdict in favor of the plaintiff for $505.11, and also found the issue of fraud against the defendant. Plaintiffs moved for judgment, whereupon the bondsmen insisted that their motion be heard. Both motions were continued to November term, 1915, when the court overruled the motion of the bondsmen, and gave judgment upon the verdict for the plaintiffs against the defendant and his sureties on the undertaking. The latter then excepted and appealed.

Merrimon, Adams & Johnston, of Asheville, and W. E. Breese, Jr., of Brevard, for appellants.

J. M. Allison and M. J. Glazener. D. L. English, of Brevard, for appellees.

WALKER, J. (after stating the facts as above). [1, 2] We had the benefit of argument upon several questions which we deem it unnecessary to decide, as we are of the opinion that the judgment below was erroneous on another ground, and it would be premature at this time to go beyond the one upon which we rest our decision. The other points may never be again presented. The doctrine is well settled that, when bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge, and if that cannot be done at once, they may imprison him until it can be done. They may exercise their right in person or by agent; they may pursue him into another state, may arrest him on the Sabbath, and, if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of new process. None is needed. It has long since been said that the bail have their principal on a string which they may pull whenever they please, and surrender him in their discharge (6 Modern, 231); the right of the bail in civil and criminal cases being, in many material respects, the same (Taylor v. Taintor, S3 U. S. [16 Wall.] 366, 21 L. Ed. 287; State v. Lingerfelt, 109 N. C. 775, 14 S. E. 75, 14 L. R. A. 605; Sedberry v. Carver, 77 N. C. 319; Adrian v. Scanlin, 77 N. C. 317). The books have clearly expressed this idea in regard to the relation of the principal to his bail, and the authorities are pretty well agreed as to it.

"A. man's bail are looked upon as his jailers of his own choosing, and the person bailed is, in the eye of the law, for many purposes esteemed to be as much in the prison of the court by which he is bailed as if he were in the actual custody of the proper jailer." 2 Hawk. p. C. 140.

It is said in 1 Hale, p. C. 325:

"Yet the law is all one if he be under bail, for he is in custodia still, for the bail are, in law, his keepers."

Wharton, in his work on Criminal Pleading & Practice, says:

"The principal is supposed to be in the bail's constant custody, and the latter, being the former's jailer, may at any time surrender him to the custody of the law." Section 62.

See Ann. Cas. 1912D (note to State v. Hyde, 234 Mo. 200, 136 S. W. 316) at page 211.

And this court said by Shepherd, J., in State v. Lingerfelt, supra, quoting, in part, from Nicolls v. Ingersoll, 7 Johns. (N. Y.) 145:

" 'The power of taking and surrendering is not exercised under any judicial process, but results from the nature of the undertaking by the bail. The bail piece is not a process, nor anything in the nature of it, but is merely a record or memorial of the delivery of the principal to his bail on security given. It cannot be questioned but that bail in the common pleas would have a right to go into any other county in the state to take his principal. This shows that the jurisdiction of the court in no way controls the authority of the bail, and as little can the jurisdiction of the state affect this right, as between the bail and his principal.' It was also decided that the bail might 'depute to another to take and surrender their principal.' In Parker v. Bidwell, 3 Conn. 84, it was held that 'bail, or a person deputed by him for that purpose, may take the principal in another state or wherever he may be and detain him or surrender him into the custody of the sheriff' "— citing also State v. Mahon, 3 Har. (Del.) 568.

It is also said that, when the obligation of bail is assumed, the surety becomes in law not only the jailer of his principal, as his custody is constructively a continuance of the original imprisonment, but, though he cannot confine him except where actually necessary, and temporarily, for the purpose of surrender, he is subrogated to all the other rights and means.which the state possesses to make his control of him effective. 3 Am. & Eng. Enc. of Law (2d Ed.) 708, citing Reese V. United States, 19 U. S. (9 Wall.) 13, 19 L. Ed. 541; United States v. Ryder, 110 U. S. 729, 4 Sup. Ct. 196, 28 L....