State Ex Rel. Lela Yost v. Scouszzio.
| Decision Date | 26 October 1943 |
| Docket Number | (No. 9492) |
| Citation | 126 W.Va. 135 |
| Parties | State ex rel. Lela Yost, Admrx., etc. v. SamScouszzio et al. |
| Court | West Virginia Supreme Court |
In a proceeding before a justice under Code, 62-10-1 to 3, to require security of a person to be of "good behavior and to keep the peace" a recognizance is the only form of security authorized to be taken.
An obligation entered into before a justice by two persons, binding one of them to be of "good behavior and to keep the peace" as provided by Code, 62-10-1 to 3, will be considered a recognizance, although signed and sealed by those bound thereby.
A recognizance given under the provisions of Code, 62-10-1 to 3, is for the exclusive benefit of the State, and there can be no recovery of the penalty thereof for or on behalf of any person injured, or the personal representative of one killed, by a breach of its conditions.
The right of action by the personal representative of one killed by the wrongful action of another, created by Code, 55-7-5, sounds in damages only, and cannot be enforced by an action ex contractu on a recognizance given by the tortfeasor to be of "good behavior and to keep the peace".
Error to Circuit Court, Marion County.
Action by the State, on relation of Lela Yost, administratrix of the personal estate of Ruby Ambrose, deceased, against Sam Scouszzio and another, to recover on the security given by named defendant to keep the peace toward decedent, the conditions of which security defendant violated by killing decedent. To review a judgment sustaining a demurrer to the declaration and dismissing the action, plaintiff brings error.
Affirmed.
A. Blake Billingslea, for plaintiff in error. Ward Lanham, for defendants in error.
From a judgment of the Circuit Court of Marion County sustaining a demurrer to the declaration in covenant of State of West Virginia for the use of Lela Yost as administratrix of the personal estate of Ruby Ambrose against Sam Scouszzio and Nick Pralley and dismissing the action, this writ of error was awarded the plaintiff.
On the 17th day of December, 1941, Sam Scouszzio was required to give security for his good behavior and to keep the peace under the provisions of Code, 62-10-1 to 3. The security given was as follows:
"State of West Virginia, County of Marion, to-wit:
Be it remembered, that on this 17th day of December, 1941, Sam Scouszzio principal, and Nick Pralley, surety, of said County, personally appeared before me, H. Pete Hamilton, a Justice of said County, and jointly and severally acknowledged themselves to be indebted to the State of West Virginia, in the penal sum of Five Hundred Dollars to be respectively made and levied on their goods, chattels, lands and tenements, and for the use of the State of West Virginia rendered, if the said Sam Scouszzio shall make default in the performances of the condition underwritten.
THE CONDITION OF THE ABOVE RECOGNIZANCE IS SUCH, that if the above bound Sam Scouszzio do and shall keep the peace and be of good behavior toward all the citizens of this State, and especially toward Ruby Ambrose for the term of one year from the date hereof, then this recognizance shall be void, otherwise to remain in full force and virtue.
his mark Sam Scouszzio (X) (SEAL) Nick Pralley (SEAL) Acknowledged before me and approved as sufficient, this 17th day of December, 1941.
In February, 1942, Scouszzio shot and killed the said Ruby Ambrose and the present action is by her personal representative to recover the penal sum of this obligation. A demurrer assigning nine grounds was interposed to an amended declaration and was sustained; and, the plaintiff not desiring to amend further, the action was dismissed.
Counsel for the respective parties are not agreed as to the character of the security given. The plaintiff treats, and declares upon it, as a bond. The defendant insists that it is a recognizance and that it must be enforced by procedure applicable to instruments of that character.
The recognizance originated at common law, and is, in form and substance different from a bond.
II Blackstone, 341.
See also Black's Law Dictionary, 3d Edition, P. 1504; State v. Smith, 98 W. Va. 621, 127 S. E. 495; State v. Smoot, 82 W. Va. 63, 95 S. E. 526; State v. Dorr, 59 W. Va. 188, 53 S. E. 120; Walker v. Commonwealth, 144 Va. 648, 131 S. E. 230. A recognizance, also, partakes of the character of a conditional judgment. Republica v. Cobbett, 3 U. S. (Dall.) 467; State v. Morgan, 136 N. C. 593, 48 S. E. 604.
We are of the opinion that this instrument is a recognizance. A justice is not authorized to take security for good behavior and the keeping of the peace except by recognizance. Code, 62-10-3. This also is the form of security utilized at common law against a breach of the peace. State v. Gilliland, 51 W. Va. 278, 41 S. E. 131; IV Blackstone, 253. A recognizance need not be formal. Where such a security is required, that which is actually given will whenever possible be construed as such. Code, 62-6-8; State v. Smith, supra; State v. Smoot, supra. Since the justice had no authority to take security in any other form the security taken must be construed as a recognizance or as nothing. Moreover, the instrument in question is in substance a recognizance. It is a certification by a proper officer that the cognizors appeared before him "and jointly and severally acknowledged themselves to be indebted to the State of West Virginia" in a sum certain. This is the essence of a recognizance. State v. Smith, supra; State v. Smoot, supra; State v. Dorr, supra; Walker v. Commonwealth, supra; State v. Coletti, 102 Kan. 523, 170 P. 995. The fact that the persons bound may have af- fixed their signatures and seals to a recognizance does not transform it into a bond.
Appropriate procedures for the enforcement of bonds and of a recognizance are not identical. At common law, where the king was the cognizee, after forfeiture, the recognizance might be enforced either by action (IV Blackstone, 253), or by scire facias (III Blackstone, 417). These common law rights and remedies under a recognizance, given in a criminal proceeding, survive in the American states, except as modified by statute. Only two statutory provisions, relating to the enforcement of recognizances, are noted by counsel. Code, 62-6-6, provides that:
"When a person under recognizance in a criminal case, either as a party or witness, fails to perform the condition thereof, if it be to appear before a court, his default shall be recorded therein."
But this provision expressly applies to recognizance "to appear before a court". Code, 56-2-4, provides that:
"In the case of any bond taken by an officer, or given by a sheriff or constable, and returned to or filed in the office of the clerk of the county court of the county, or any bond or recognizance taken in a criminal case or proceeding, the circuit court of the county, or the court in which any such bond or recognizance is given, may, on motion of any person, or the State, as the case may be, give judgment for so much money as he, or the...
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