State ex rel. Gibson v. Lay
| Decision Date | 21 May 1895 |
| Citation | 29 S.W. 999,128 Mo. 609 |
| Parties | The State ex rel. Gibson, Prosecuting Attorney, v. Lay, Special Judge |
| Court | Missouri Supreme Court |
Peremptory writ denied.
D. M Gibson and M. T. January for relator.
(1) The continuing recognizance, entered into by defendant at the November term, 1893, of the Vernon county circuit court continued in force until released by a new valid obligation to appear at the Henry county circuit court. (2) Such an obligation has not been given in this case because: First. The sheriff was not authorized to accept a bond, the defendant not being in custody. Second. The bond tendered to the sheriff was conditioned to appear at an impossible date -- a day that had already passed, and was hence not a valid obligation. R. S. 1889, sec. 4126; State v. Stone, 106 Mo. 1. (3) A recognizance taken by one not authorized is void. State v. Randolph, 26 Mo. 213; State v Randolph, 22 Mo. 479; State v. Woolery, 39 Mo. 525; State v. Caldwell, 28 S.W. 4. (4) The Henry county circuit court has never acquired jurisdiction, because the application for change of venue was presented and granted in term time, and defendant did not enter into a recognizance in open court for his appearance in Henry county nor was he remanded to the custody of the sheriff. R. S. 1889, sec. 4163. (5) Mandamus is the proper remedy, because, first, the state has no other remedy to enforce her criminal laws; second, the prosecuting attorney has a special interest to subserve, to wit, the proper performance of his official duties; third, the acts to be done by the court were ministerial. (6) All of the facts being found by the court, and nothing remaining to be done but to carry out the legal conclusion from those facts, mandamus will lie to compel the performance of the act. High on Extraordinary Leg. Rem., sec. 235; State v. Snyder, 98 Mo. 555. (7) The state was entitled to the presence of defendant at the November term, 1894, and, by reason of his nonappearance, a capias should have been ordered for his arrest, and a judgment of forfeiture of his bond entered.
Irvin Gordon and G. S. Hoss for respondent.
Mandamus will not lie in this case for a number of reasons. First. It will not compel an inferior judicial tribunal to enter up any particular judgment nor to reverse its decision when it has once acted. Second. It will not lie for the reason that the court, in passing upon this motion and overruling it, was a judicial officer and acted in a judicial capacity. Third. The judgment of this court, in overrnling the motion, was right; and if wrong, the relator has a remedy by appeal or writ of error. Dunklin Co. v. Dist. Court, 23 Mo. 449; State ex rel. v. Lafayette Co., 41 Mo. 221; State ex rel. v. McAuliffe, 48 Mo. 115; State ex rel. v. Wilson, 49 Mo. 146; Miltenberger v. Co. Court, 50 Mo. 172; State ex rel. v. Garasche, 65 Mo. 489; State ex rel. v. Co. Court, 68 Mo. 29; State ex rel. v. Young, 84 Mo. 90; State ex rel. v. Court of Appeals, 87 Mo. 374; Ex parte Chambers, 10 Mo.App. 240; People ex rel. v. Pratt, 28 Cal. 166; Board v. Grant, 9 S. & M. 77; People v. Rearson, 2 Scam. 189; High's Extraordinary Legal Remedies, secs. 243a, 244, 247, 251 et seq.
Mandamus.
-- This is a proceeding by mandamus at the relation of the prosecuting attorney of Vernon county against the defendant as special circuit judge of said county, having jurisdiction of the subject-matter and of the party, to compel him as such judge to order capias for the apprehension of, and to forfeit the recognizance of, one Caldwell who had theretofore, to wit, at the November term, 1893, of said court, been indicted for grand larceny, and had entered into recognizance for his appearance at the following April term of said court to answer to said indictment, but had made default. The recognizance was a continuing one.
At the April term, 1894, on his application, a change of venue was awarded Caldwell, who was not then in attendance upon said court, his presence being waived by the prosecuting attorney in so far as in his power to do so, and an order entered of record transferring the cause to the circuit court of Henry county. Defendant did not then enter into recognizance in open court for his appearance at the next regular term of the Henry circuit court, but the court made an order of record fixing his bond at $ 700 for that purpose and directing the sheriff of said county of Vernon to take and approve the same. The next term of the Henry circuit court began on the day of September, 1894. On the fifteenth day of September, Caldwell presented a recognizance to the sheriff of Vernon county for his approval, conditioned for his, Caldwell's, appearance in Henry county circuit court on September , 1894. The sheriff indorsed his approval on the recognizance and deposited it in the clerk's office, but afterward regained its possession, erased his name, and never returned the recognizance.
At the November term, 1894, of the circuit court of Vernon county, relator, as prosecuting attorney of said Vernon county, filed a motion to forfeit Caldwell's original recognizance, and for an order for a capias for his apprehension, which the court, by an order of record, overruled, and failed and refused to either forfeit the recognizance or to order a capias for his arrest, because of its want of jurisdiction to do so, the cause having been transferred to the circuit court of Henry county.
It is contended by relator that mandamus is the proper remedy under the facts as disclosed by the record, the state having no other remedy, and the action of the court, in refusing to forfeit the recognizance, and to order a capias for the arrest of Caldwell, being merely ministerial, while upon the other hand the contention is, that the action of the court was judicial, and that, in such case, mandamus will not lie.
All orders and mere routine business, even by a court of general jurisdiction, are not necessarily judicial, depending largely upon their nature and result.
The validity of the first recognizance is not questioned, and, it may be conceded, was in full force and binding upon the principal therein, until the full measure of its terms had been complied with by Caldwell, by his appearance in court, his surrender by his securities, or the giving by him of a new recognizance. The sections of the statute which have any bearing upon the question now under consideration will be referred to in the course of this opinion.
Section 4160 is as follows: "Every order for the removal of a cause, if made in term, shall be entered on the minutes; if made by an officer out of court, shall be in writing and signed by such officer, and shall be filed by the clerk with the petition, if any, as a part of the record in the cause."
Sec. 4161. "When such order shall be made, the defendant, if not in confinement or custody, shall enter into a recognizance, with sufficient sureties, for his appearance to answer the charge in the court to which the cause is to be removed, at the next term thereof, and not to depart such court without leave."
Sec. 4162. "Such recognizance may be taken by the court or judge making the order, or by any court or officer authorized by law to let to bail after indictment, and when taken out of the court in which the cause is pending, shall be filed with the clerk thereof."
Sec. 4163. "No order for the removal of a cause shall be effectual in the case of any defendant not in confinement or custody, unless a recognizance, taken as herein directed, be entered into in open court, or delivered with the order and filed with the clerk of the court, nor unless such order be delivered before any juror is sworn in...
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