State v. Gann

• Decision Date: 02 July 1932
• Citation: 51 S.W.2d 490,164 Tenn. 601
• Parties: STATE v. GANN et al.
• Court: Tennessee Supreme Court

51 S.W.2d 490

164 Tenn. 601

STATE v. GANN et al.

Supreme Court of Tennessee.

July 2, 1932

Appeal from Chancery Court, Davidson County; R. B. C. Howell Chancellor.

Proceeding by the State of Tennessee against J. L. Gann and another. From a decree sustaining a demurrer, the State appeals.

Affirmed.

R. M Atkinson, R. L. Sadler, and Theo. Parker, all of Nashville for the State.

Newman Brandon, Jr., of Nashville, for appellees.

COOK J.

John A Fields was bound over to await action by the grand jury upon the charge of failure to provide for his children contrary to the provisions of chapter 120, Pub. Acts of 1915. A bail bond in the penalty of $1,000 was executed by J. L. and A. W. Gann. The bill was filed to recover the penalty of the bond upon allegations of forfeiture and the refusal of bail to deliver Fields to the custody of the court or pay the penalty of the bond.

The defendants demurred to the bill, among other grounds because the statute prescribes the remedy upon forfeited bonds and recognizances. The appeal is from the decree of the chancellor sustaining the demurrer.

The statutes, embodied in sections 7141 to 7147 of Shannon's Code, sections 11688 to 11696 of the Code of 1932, prescribe the mode of procedure upon forfeiture of bail. While the precise question has not been determined in this state, it is apparent from a consideration of the statutes that the statutory procedure is exclusive, for in due sequence they provide: (1) For judgment nisi; (2) scire facias, a proceeding incidental to the original case (State v. Sibley, 4 Lea, 738); and (3) exoneration of bail.

The bail may be exonerated by delivery of the prisoner, upon answer to the scire facias or after final judgment upon petition to the court pursuant to section 7146, Shannon's Code, section 11695, Code of 1932.

In the enforcement of forfeiture and for the exoneration of bail the statute makes no distinction between a recognizance and a bail bond. Both are designed to compel appearance of the prisoner, and both are enforceable through the statutory remedy. It would be anomalous to hold that the recognizance, which is but the obligation of bail entered of record, should be enforced by the statutory procedure, and that the bail bond filed with the court, but not entered of record, might be enforced by a separate action as a common-law obligation. We note that it is intimated in Brewer v. State, 6 Lea, 198, that the distinction between bonds and recognizances was abolished by statute. Since these statutes clothe the judge of the court to which a party is held by bail with a discretion in the exoneration of bail which could not be exercised by another court assuming jurisdiction in a separate action to enforce the bond as a common-law obligation, we conclude that the statutory remedy is exclusive, and,...