State v. Friend

• Decision Date: 10 April 1931
• Docket Number: 40570
• Parties: STATE OF IOWA, Appellee, v. HARDY FRIEND, Defendant; FANNIE FRIEND, Intervener, Appellant
• Court: Iowa Supreme Court

236 N.W. 20

212 Iowa 136

STATE OF IOWA, Appellee, v. HARDY FRIEND, Defendant; FANNIE FRIEND, Intervener, Appellant

No. 40570

Supreme Court of Iowa, Des Moines

April 10, 1931

Appeal from Hardin District Court.--SHERWOOD A. CLOCK, Judge.

This was a proceeding by the State to forfeit a cash appeal bond deposited by the defendant. The intervener came into the case and claimed the cash deposit as her own money, her theory being that the appeal was not properly taken, and therefore there was no consideration for the bond. A demurrer against the petition of intervention was interposed by the State. Evidence was introduced, however, and it appears in the abstract that the demurrer was considered as an answer and the cause tried generally. Because the judgment was entered in favor of the state, the intervener appeals.

Affirmed.

James L. Cameron, for appellee.

F. E Northup, for appellant.

KINDIG J. FAVILLE, C. J., and EVANS, STEVENS, ALBERT, WAGNER MORLING, and GRIMM, JJ., concur.

OPINION

KINDIG, J.

As suggested by the foregoing preliminary statement, the state commenced this proceeding against the defendant, Hardy Friend, for the purpose of forfeiting a cash bail bond deposited by, or in behalf of, him. The defendant, on March 7, 1929, was convicted of illegally transporting intoxicating liquors and illegally having possession of such liquors. Two sentences of $ 500 each were imposed upon him; that is to say, one penalty for each offense. Thereby the total fine was $ 1,000. When so doing, the district court fixed the defendant's appeal bond at $ 1,500 in each case, thus making it necessary for the defendant to post bonds aggregating $ 3,000 in order to appeal.

Fannie Friend, the intervener-appellant appeared before the clerk of the district court of Hardin County, on March 9, 1929, and deposited $ 3,000 in cash as an appeal bond for and in behalf of the defendant, who is her son. Thereupon the defendant was released from custody and given his liberty, pending the proposed appeal. An appeal was attempted by the defendant, and the clerk of the district court duly certified the record in the case to this court. But, according to the procedendo issued by this court, the appeal was dismissed. It appears in the record that the appeal was dismissed because the defendant did not serve the notice thereof within the statutory time.

After the procedendo was returned, the district court, on September 5, 1929, in the proper proceeding, ordered the clerk of that court to apply $ 1,000 of the cash bond in satisfaction of the two fines aggregating that sum. No objection is made by appellant concerning that action of the district court, and the defendant has not appealed. Appellant, however, does complain because the district court on November 16, 1929, ordered the remaining $ 2,000 of said cash bond forfeited on the theory that the defendant did not appear in accordance with the terms of such bond. According to the record, it seems that the defendant has absconded, and upon that theory the state sought to forfeit said remaining $ 2,000 deposited as bail. Appearance was made by the appellant in the proceeding to accomplish such forfeiture. This was done by way of the petition of intervention, before mentioned. To this petition of intervention the state interposed a demurrer, but, as previously indicated, evidence was introduced and, according to the abstract, a trial was had on the petition of intervention as if the demurrer were an answer. Neither the state nor the appellant relied upon the demurrer, as such, but, according to the abstract, records and proceedings not named in the petition of intervention were introduced in evidence. On this appeal we are asked not to consider the demurrer as such. There is presented to us for consideration not only the petition of intervention and the so-called demurrer, but likewise many records and facts not shown in the petition of intervention. Consequently on this appeal we will, as the district court apparently did, consider the so-called demurrer as if it were an answer to the petition of intervention.

Following the hearing in the district court, that tribunal declared a forfeiture of the bail bond on the theory that the defendant did not appear, as required by law. Complaint, therefore, is made by the appellant because the district court did not release to her the $ 2,000 of the aforesaid cash bail bond. The basis for appellant's complaint in this regard is that the notice of appeal from the judgments of the district court to this court being filed too late, there never was in fact an appeal and therefore no consideration for the bail.

By way of reply to that contention, the state claims that the defendant obtained his liberty through the bail, and therefore he and appellant are estopped from claiming that the appeal was not properly taken. Also it is urged by the state that a consideration existed for the bail because through it the defendant obtained his liberty during the attempted appeal and was not asked to surrender himself into the custody of the Hardin County officers until after the appeal had been dismissed. Such is a statement of the matters involved in the controversy.

I. Underlying the appellant's argument is the thought that the bail money belonged to her and that she simply aided the defendant by delivering the funds into the custody of the district court clerk on the theory that an appeal would be perfected. Through someone's neglect, the appeal was not properly taken. Because of such neglect and failure, appellant contends that the money should be returned to her. Therefore the first question presented is whether appellant stands in any different position than the defendant, so far as the bail money is concerned.

Section 13627 of the 1927 Code provides:

"The defendant, at any time after an order admitting him to bail, instead of giving bail, may deposit with the clerk of the district court to which the undertaking is required to be sent, the sum mentioned in the order, and, upon delivering to the officer in whose custody he is, a certificate under seal from said clerk of the deposit, he must be discharged from custody."

It will be noted that the deposit named in the statute is to be made by the defendant and not by someone else. Although the money in fact does not belong to the defendant, yet, so far as the state is concerned, the deposit is made as if it were his property. Concerning this, we said in State v. Owens, 112 Iowa 403, 84 N.W. 529, reading on page 407:

"It will be observed that there are no provisions (in the statute) for the deposit of money by any person other than the defendant himself--no right of surrender except by the bail or the defendant himself, and, when a deposit of money is made, no right of return except to the defendant. The thought that a third person may furnish the money that defendant is authorized to deposit, and afterwards surrender the defendant and secure a return of the deposit, is distinctly negatived. Bail is expressly defined in the Code, and the form thereof given. Deposit of money by a third person is not authorized. * * *"

Again in State v. Anderson, 119 Iowa 711, 94 N.W. 208, reading on page 718, we declared:

"* * * this statute does not contemplate the deposit of money by third persons, and we have held that bail cannot lawfully be allowed upon such security. * * * The statute, as there interpreted by us, goes no further than to allow the defendant himself to deposit money equal to the bail required, and in such case no bond is taken or required."

Likewise we said in State v. Hart, 209 Iowa 119, 227 N.W. 650:

"The argument at this point is, however, that the cash bail was not 'money' deposited by the defendant in the criminal case, and that the ownership of the money was in the appellant, and not in said defendant, and that, therefore, the money is not subject to the payment of the judgment for costs rendered against the defendant in the criminal case. The identical question was before us in State v. Owens, 112 Iowa 403, 84 N.W. 529. The statute at that time was identical with the present statute."

So, it is apparent that the cash bail, so far as the state is concerned, must be made by the defendant. Then, according to the statute, and the authorities interpreting it, such cash, although delivered by another must in law be considered the property of the defendant when the rights of the state are involved. For as said in Wright & Taylor v. Dougherty, 138 Iowa 195, 115 N.W. 908, reading on page 198:

"True, under the statute, the money is to be deposited in the name of the defendant, and perhaps in a sense the legal title thereto is to be regarded as in him. But the money in the hands of the clerk is no more than a deposit, and this is only in favor of the State, the other party to the transaction; and the interest of the State does not extend to the actual ownership of the money. It goes no farther than that the defendant shall appear when called for trial, and that the deposit shall be available out of which to pay any fine or costs that may be assessed against him. This the depositor must be held to have agreed to. The statute goes no farther, and the cases cited go no farther. As between the depositor and the defendant, or his creditors, the ordinary rules of property obtain. It is well settled that a levy of attachment is of force only to the extent of the real interest of the debtor in the property seized, either under levy or garnishment."

Nevertheless as stated by all the authorities, the money in law is deemed to belong to the defendant, so far as the rights of the state are affected. The statute requires that the cash bail must be furnished by the defendant and for the purposes of such bail ...