State v. Davis

• Decision Date: 30 March 1960
• Docket Number: No. 6627,6627
• Citation: 350 P.2d 748,1960 NMSC 33,67 N.M. 6
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. William C. DAVIS, E. G. Foster and C. L. Smith, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 748

350 P.2d 748

67 N.M. 6

STATE of New Mexico, Plaintiff-Appellee, v. William C. DAVIS, E. G. Foster and C. L. Smith Defendants-Appellants.

No. 6627.

Supreme Court of New Mexico.

March 30, 1960.

Rehearing Denied April 11, 1960.

Lynell G. Skarda, Clovis, for appellants.

Hilton A. Dickson, Jr., Atty. Gen., B. J. Baggett, Asst. Atty. Gen., Boston E. Witt, Asst. Atty. Gen., for appellee.

CARMODY, Justice.

Appeal by the defendants from a judgment rendered against them, as sureties, on a bond given in the appeal of a criminal case.

The issue for our determination is whether the sureties are liable under a single bond signed by them on behalf of two defendants, one of whom died prior to the affirmance of a criminal conviction by the supreme court.

In 1957, two men, named Spahr and Davis, were convicted of selling alcoholic liquors without a license. The two appealed to this court and, with E. G. Foster and C. L. Smith as sureties, furnished a bond, which was entitled 'Supersedeas Bond.' The material portions of the bond are as follows:

'That whereas Elgin Spahr and William C. Davis as principals and E. G. Foster and C. L. Smith as sureties are held and firmly bound unto the State of New Mexico in the penal sum of Fifteen Hundred Dollars, lawful money of the United States of America, to the payment of which well and truly to be made we bind ourselves, our heris, executors and administrators firmly by these presents.

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'Now, therefore, if said appellants and principals [sic] shall appear in the Supreme Court of the State of New Mexico on the return day of said appeal and from day to day, from term to term, and from time to time and obey all of the orders made by said Supreme Court of the State of New Mexico in said cause, and shall surrender themselves in execution of the judgment and sentence appealed from as said Court may direct, if the judgment and sentence of said District Court against them shall be affirmed by said Supreme Court, and shall pay all costs that may be directed against them on said appeal, then, in that event this obligation shall be null and void; otherwise to remain in full force and effect.'

The bond was approved by the clerk of the district court and the appeal perfected. Prior to the rendition of the opinion by this court and the issuance of the mandate affirming the conviction as to both defendants State v. Spahr, 1958, 64 N.M. 395, 328 P.2d 1093, Spahr committed suicide. This event was never brought to the attention of this court until the filing of the appeal in the instant case. After the mandate in the criminal case was issued, Davis failed to appear, so the district court called upon the appellants in the instant case as sureties to surrender the body of Davis; and when they failed to do so, the bond was ordered forfeited. Subsequently, this suit was brought on the bond against Davis and the two appellants, but no service was obtained upon Davis. The lower court entered a judgment against the two sureties in the sum of $1,500.

Appellants Foster and Smith urge for reversal two points, (1) that the death of Spahr discharged the sureties, and (2) that the bond is strictly a joint obligation, not joint and several, and is not only void for uncertainty, but that by reason of the death of Spahr as one joint obligor, the others are necessarily released.

The trial court found as a fact that the bond was a bail bond, although erroneously entitled 'Supersedeas Bond.' Such finding was not objected to by the state and is binding upon us. Therefore, we will confine our ruling accordingly, even though the state now seeks to have us construe the bond as a supersedeas bond.

It is well settled that the death of the principal before the day fixed for his appearance discharges his surety. Restatement of the Law, Security, Sec. 208; 63 A.L.R.2d 830, particularly 841 where the cases are assembled. Therefore, quite obviously these defendants could not be held liable for the failure to produce Spahr, even though his death was a suicide. State v. Stanley, 1919, 104 Kan. 475, 179 P. 361; People v. Wissig, 1875, 7 Daly, N.Y., 23. But does such a rule apply where there are two principals and only one is dead?

Ordinarily, such a problem would never arise, because our statute, Sec. 41-4-16, N.M.S.A., 1953 Comp., would seem to contemplate a single bond for each defendant, and apparently the same is true in most other jurisdictions in view of the almost total lack of cases on the subject.

The bond had for its main purpose the release of Davis and Spahr pending the disposition of their appeal. The benefits were received, even though the appeal was ultimately unsuccessful. To release the sureties from liability on the technicality of the death of Spahr would be an injustice.

Restatement of the Law, Security, Sec. 188, states the rule as to defective judicial bonds, as follows:

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