State ex rel. County Court of Pleasants County v. Anderson

• Decision Date: 27 July 1955
• Docket Number: No. 10709,10709
• Citation: 140 W.Va. 827,87 S.E.2d 249
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. COUNTY COURT OF PLEASANTS COUNTY, Plaintiff in Error, v. Oliver ANDERSON and Albert Poling, Defendant in Error. Supreme Court of Appeals of West Virginia

Page 249

87 S.E.2d 249

140 W.Va. 827

STATE ex rel. COUNTY COURT OF PLEASANTS COUNTY, Plaintiff in Error, v. Oliver ANDERSON and Albert Poling, Defendant in Error.

No. 10709.

Supreme Court of Appeals of West Virginia.

Argued April 19, 1955.

Decided May 17, 1955.

Rehearing Denied July 27, 1955.

Syllabus by the Court.

1. 'A bond given under a statute must be construed, as to the scope of its obligation, to cover the objects of the statute in requiring it, if its would will at all allow such construction, and the statute is to be regarded a part of it.' Point 2, Syllabus State v. Wortring, 56 W.Va. 394 .

Page 2450

2. A surety who has executed a bond in a bastardy proceeding, pursuant to provisions of Code, 48-7-4, is not released from further liability thereunder by the re-arrest and surrender of the principal on the bond to legal custody.

S. A. Powell, Harrisville. J. C. Powell, St. Marys, Martin C. Bowles, Charleston, for plaintiff in error.

John G. Fox, Atty. Gen., Harold A. Bangert, Jr., Asst. Atty. Gen., for defendant in error.

GIVEN, Judge.

On a plea of guilty to a complaint in a bastardy proceeding, pending in the Circuit Court of Pleasants County, charging Oliver Anderson with being the father of an illegitimate child, the circuit court of that county, on April 30, 1953, entered an order adjudging Anderson to be the father of the child, and further adjudging that Anderson 'do pay to the County Court of Pleasants County for the maintenance, education, and support of the said child, the sum of $25 on the 1st day of May, 1953, and a like sum on the 1st day of each month until the said child shall attain the age of 17 years, and that the defendant do pay the cost of this proceeding.

'It is further ordered that the said defendant do give a bond with good surety, conditioned for faithful compliance with this order. In default of bond, the defendant was remanded to jail.' On June 23, 1953, a bond was executed under seal by Anderson, as principal, and Albert Poling, as surety, before the clerk of the court, the penalty therein being fixed at $500, the condition of the bond being: 'The condition of the above obligation is such that whereas the above bound Oliver Anderson, is now charged in the Circuit Court of Pleasants County, West Virginia, by Georgia Mae Thrasher, of being the father of a bastard child and caused the said Oliver Anderson to be apprehended upon said charge, which proceedings are now in the Circuit Court of Pleasants County, West Virginia, and upon verdict of guilty, the said Oliver Anderson, upon order of the Court shall pay to the County Court of Pleasants County, the sum of twenty-five dollars per month until said child has attained the age of 17 years, unless it should sooner die.'

After the execution and delivery of the bond, Anderson was released from custody. Thereafter, Anderson having made default in the monthly payments, as required by the order, the instant notice of motion for judgment proceeding was instituted for recovery of accrued payments then owing. The defendant Poling filed his special plea to the notice of motion, alleging, in effect, that the order mentioned above did not fix the penalty of the bond, did not provide for the release of Anderson from custody upon the execution of the bond, and that after the release of Anderson from custody upon the execution of the bond 'defendant surrendered the said Oliver Anderson to the Sheriff of said County of Pleasants, and thereafter, so this defendant is informed, the said Oliver Anderson was released from custody without the knowledge, consent or approval of this defendant'. The circuit court sustained a demurrer to the plea and, upon a directed verdict, entered judgment for plaintiff in the amount of $225, the sum sued for. This Court granted a writ of error to the defendant Poling, the surety on the bond.

The contention is made that the bond is not valid, either as a statutory bond or as a common law bond. The pertinent statute, Code, 48-7-4, in so far as material, provides that '* * * if such father be then in court, the court shall order him to give bond in such penalty and with such sureties as the court may deem sufficient for the performance of such order; and shall order him to jail until such bond be given in the court or filed in the office of the clerk thereof, with sufficient sureties to be approved by the court or clerk, or until the woman and the county court consent to his discharge, or until he be discharged by an order of the circuit court the court being satisfied that the prisoner cannot pay the judgment of the court or give the bond required, or until he be otherwise legally discharged * * *'. It is certain that the parties, in executing the bond, intended to comply with this statute. The purpose of the bond, in so far as the principal and surety were concerned, was to obtain release of the principal from custody, which purpose was effected.

In State v. Wotring, 56 W.Va. 394, 49 S.E. 365, 366, this Court held: '2. A bond given under a statute must be construed, as to the scope of its obligation, to cover the objects of the statute in requiring it, if its words will at all allow such construction, and the statute is to be regarded a part of it.' See Municipality of Cowen ex rel. Proudfoot v. Greathouse, 130 W.Va. 587, 45 S.E.2d 489; Tug River Lumber Co. v. Smithey, 107 W.Va. 482, 148 S.E. 850; State v. Freshwater, 107 W.Va. 210, 148 S.E. 6; Hicks v. Randich, 106 W.Va. 109, 144 S.E. 887. In Chambers v. Cline, 60 W.Va. 588, 55 S.E. 999, this Court held: '2. In the absence of anything showing a different intention in the giving of a statutory bond, it will be presumed that the intention of the parties was to execute such a bond as the law required. 3. So, where a bond is given under the authority of a statute, that which is not expressed but should have been incorporated is included in the bond, while that which is not required by the statute is excluded if it is sufficiently clear...