State ex rel. Owens v. Fraser

• Decision Date: 26 November 1901
• Citation: 65 S.W. 569,165 Mo. 242
• Parties: THE STATE ex rel. OWENS, County Treasurer, to use of County School Fund, Appellant, v. FRASER et al
• Court: Missouri Supreme Court

65 S.W. 569

165 Mo. 242

THE STATE ex rel. OWENS, County Treasurer, to use of County School Fund, Appellant, v. FRASER et al

Supreme Court of Missouri, Second Division

November 26, 1901

Appeal from Nodaway Circuit Court. -- Hon. Romulus E. Culver Special Judge.

Affirmed.

John M Dawson, E. A. Vinsonhaler and W. C. Ellison for appellant.

(1) The remedy against these sureties is not confined to scire facias. While that is the usual course adopted, it is not exclusive. The State may sue in a civil action as of debt at common law. Bodine v. Com., 24 Pa. St. 69; Littleton v. State, 46 Ark. 413; State v Norment, 12 La. 511; State v. Folsom, 26 Me. 209; Com. v. Greene, 12 Mass. 1; State v. Glass, 9 Ia. 325; State v. Gorley, 2 Ia. 52; Pate v. People, 15 Ill. 221; State v. Inman, 7 Blackf. (Ind.) 225. (2) Consolidation may not be made so as to oust a court of jurisdiction. "Whenever . . . . two cases are united in one, and are so united for convenience, or to avoid multiplicity of suits, the several amounts of each can not be aggregated to confer jurisdiction." 1 Ency. Pl. & Pr., p. 724. The fact that the present actions are by the State at the relation of the treasurer of Nodaway county, to the use of the school fund, does not affect the question, for the county treasurer is not a State officer within the meaning of the Constitution defining appellate jurisdiction. State v. Hill, 152 Mo. 234. (3) These identical bail bonds have been expressly decided by this court not to be nullities. In the case of Holker v. Hennesy, 143 Mo. 84, the sureties who are here defending were garnished by the victim of the prisoner's crime. "It seems to be a well established proposition in law, as well as in equity, that he who accepts and retains a benefit under an instrument, whether a deed, will or other writing, is held to have adopted the whole, and to have renounced every right inconsistent therewith." Upon what principle of exalted equity shall a man be permitted to receive a valuable consideration? Through the signing voluntarily of a bond, and then keeping the consideration and repudiating the bond. Daniels v. Tearney, 102 U.S. 421. Contracts of indemnity, made with sureties by third parties, do not come within the rule making such indemnity contracts void if between the sureties and the prisoner himself. The reason for the latter rule does not apply in the former case. 3 Am. and Eng. Ency. of Law, (2 Ed.), p. 686. (4) Assuming the bonds to be invalid, will the sureties be permitted to take advantage of it while their principal is a fugitive from justice? The only authority we have been able to find on this question seems to hold that they can not. La. Soc. etc., v. Moody, 52 La. Ann. 1815. (5) It has been so frequently decided by this court that a sheriff may admit a prisoner in his custody to bail, during the vacation of the circuit court in which he stands charged with a felony, that we suppose opposing counsel in this case will not question the sheriff's authority generally to act in such circumstances, upon the conditions named in section 2546, Revised Statutes 1899, even though there be no specification of the amount of bail on the warrant. State v. Jenkins, 24 Mo.App. 433; State v. Creech, 69 Mo.App. 377; State v. Austin, 141 Mo. 487; State ex rel. v. Lay, 128 Mo. 614; Jones v. State, 7 Mo. 81. (6) Assuming that the sheriff, in reducing the amount of bail from four thousand dollars to twenty-five hundred dollars in each case, acted without authority from the judge in vacation, we contend that such an irregularity can not be taken advantage of by either the principal or sureties, if they requested it to be done, because it was an error resulting alone to their advantage and violated no rule of morals or public policy. The sureties are estopped from taking advantage of such defect. Peters v. State, 10 Tex. 302; Com. v. Nimmo (1885), 7 Ky. Law Rep. 287; Beveridge v. Chitlain, 1 Ill.App. 237; Humphreys v. State, 33 Ark. 713; Chumasaao v. People, 18 Ill. 504; Jones v. Gordon, 82 Ga. 570; Kearns v. State, 3 Blackf. (Ind.) 334; Com. v. Porter, 1 A. K. Marsh (Ky.) 44; Clapp v. Cofran, 7 Mass. 98; Freeman v. Davis, 7 Mass. 200; Whettier v. Way, 6 Allen, 288; State v. Houston, 74 N.C. 549; State v. Cannon, 34 Ia. 322; State v. Mills, 13 N.C. 555. (7) Section 2543, Revised Statutes 1889, provides that "when the defendant is in custody or under arrest for a bailable offense, the judge of the court in which the indictment or information is pending, may let him to bail and take his bond or recognizance." We think the statute quoted gave the judge in vacation (In re Kindling, 39 Wis. 58; State v. Wilson, 12 La. Ann. 189), and at any place within his circuit (Paine v. State, 7 Blackf. (Ind.) 206), authority to admit the prisoner to bail, and consequently, to that end, the right to reduce the amount of bail fixed at a preceding term of court. State v. Watson, 54 Mo.App. 416; State ex rel. v. Field, 112 Mo. 558.

W. W. Ramsey for respondent.

(1) The appellate court's jurisdiction is determined by the aggregate amount of the judgment and not by the proportional share of the two suits joined. Priest v. Deaver, 21 Mo.App. 209; Sanders v. Waggoner, 82 Va. 316; Atkinson v. McCormick, 76 Va. 79; Harmony Club v. Gas Light Co., 42 La. Ann. 453; Sedgwick v Johnson, 107 Ill. 385; Freeman v. Dawson, 110 U.S. 264. When these two suits were consolidated, the new suit, the one created by the consolidation, involved the amount of five thousand dollars. (2) This action can not be maintained. The entire procedure in regard to the forfeiture and collection of recognizances in criminal cases is statutory. R. S. 1899, secs. 2543 to 2556. (3) "It did not and does not pertain to the office of sheriff at common law to take a bail bond in felony cases." 3 Am. and Eng. Ency. Law (2 Ed.), 660; 1 Edw. IV., C. 2; 1 Black Com., 409; State v. Walker, 1 Mo. 546; State v. Howell, 11 Mo. 613; State v. Hill, 3 Ired. (N. C.) 398; Jacquemine v. State, 48 Miss. 280. "The giving and taking of bail is now limited, regulated and controlled by statute. A bail bond partakes very little of the nature of a contract between the parties in whose name it is taken, but it is rather a legal proceeding in the course of justice, the effect of which is regulated by statute." 2 Am. and Eng. Ency. Law (1 Ed.), p. 3; Crane v. Keating, 13 Pick. 342. (4) The only instance known to our statutes where a sheriff can determine and fix the amount of bail to be received from a prisoner is specified in section 4126, Revised Statutes 1889 (now section 2546, 1899). That section provides but a single instance in which the sheriff can fix the amount of bail, i. e., in the case of a misdemeanor, and then in a sum not less than one hundred dollars. In cases of felony the section clearly means that the amount of bond required by the prisoner shall be indorsed and specified on the warrant of arrest or commitment. This section certainly imposes limitations and restrictions upon a sheriff in this State. State v. Caldwell, 124 Mo. 512. (5) "Where the authority under which the bond is taken, be conferred by judicial order or warrant, such authority must be strictly pursued, and a bond taken thereunder which does not substantially conform to the prescribed conditions is without authority and is void." 3 Am. and Eng. Ency. of Law (2 Ed.), 689; Waugh v. People, 17 Ill. 561; Roberts v. State, 34 Kan. 151; State v. Roberts, 37 Kan. 438; Barringer v. State, 27 Tex. 553; Neblett v. State, 6 Tex.App. 316; 3 Am. and Eng. Ency. of Law (2 Ed.), 700; State v. Buffum, 22 N.H. 267. (6) The sheriff was neither vested with jurisdiction nor authority by the common law, or the statutes of the State, or by order of court, to fix the amount of bail required by these prisoners or to take the same in the manner or under the circumstances he pretended to take them. Bail bonds taken without authority are void. U. S. v. Case, 8 Blatchf. (U.S.) 250; Butler v. Foster, 14 Ala. 323; Gray v. State, 43 Ala. 41; Cooper v. State, 23 Ark. 278; Levins v. State, 31 Ark. 53; Rupert v. People, 20 Col. 424; Lamb v. Dillard, 94 Ga. 206; Solomon v. People, 15 Ill. 292; Blackman v. State, 12 Ind. 556; State v. Wenzel, 77 Ind. 428; State v. Wininger, 81 Ind. 51; State v. District Court, 84 Iowa 167; Morrow v. State, 5 Kan. 563; Com. v. Fisher, 2 Duv. (Ky.) 376; Com. v. Roberts, 1 Duv. (Ky.) 199; Com. v. Nicholls (Ky.), 33 S.W. 946; State v. Vion, 12 La. Ann. 688; State v. Collins, 19 La. Ann. 145; State v. Young, 56 Me. 219; Dow v. Prescott, 12 Mass. 419; Townsend v. People, 14 Mich. 388; Jacquemine v. State, 48 Miss. 280; People v. Brown, 23 Wend. (N. Y.) 47; Powell v. State, 15 Ohio 579; State v. Clarke, 15 Ohio 595; Williams v. Shelby, 2 Ore. 144; Belt v. Spaulding, 17 Ore. 130; State v. McCoy, 1 Baxt. (Tenn.) 111; Busby v. State, 13 Tex. 136; Jackson v. State, 13 Tex. 218; Holmes v. State, 44 Tex. 631; State v. Walker, 1 Mo. 546; State v. Ramsay, 23 Mo. 327; State v. Randolph, 26 Mo. 213; State v. Nelson, 28 Mo. 13; State v. Ferguson, 50 Mo. 409; State v. Swope, 72 Mo. 399; State v. Caldwell, 124 Mo. 509; State v. Watson, 54 Mo.App. 416; State v. Pratt, 148 Mo. 402; State v. Woodward, 159 Mo. 680. (7) "An undertaking that is void as a statutory bond for the want or authority in the person taking it, can not be enforced as a common-law obligation." 3 Am. and Eng. Ency. of Law (2 Ed.), pp. 688-689; Com. v. Fisher, 2 Duv. (Ky.) 376; Powell v. State, 15 Ohio 579; State v. Clarke, 15 Ohio 595; Williams v. Shelby, 2 Ore. 144; Dickenson v. State, 20 Neb. 72; State v. Walker, 1 Mo. 546; State v. Watson, 54 Mo.App. 416; State v. Caldwell, 124 Mo. 509. (8) No other bond can be taken than that authorized by law; if unauthorized or illegally taken, the instrument does not bind the...