State v. Haverstick

• Decision Date: 13 July 1959
• Docket Number: No. 47348,No. 1,47348,1
• Parties: STATE of Missouri, Respondent, v. John George HAVERSTICK, Principal, and Carolina Casualty Insurance Co., a Corporation, Surety, Appellant
• Court: Missouri Supreme Court

Page 92

326 S.W.2d 92

75 A.L.R.2d 1422

STATE of Missouri, Respondent, v. John George HAVERSTICK, Principal, and Carolina Casualty Insurance Co., a Corporation, Surety, Appellant.

No. 47348.

Supreme Court of Missouri, Division No. 1.

July 13, 1959.

Robert L. Spurrier, Butler, for appellant.

Walter W. Pierce, Pros. Atty., Butler, for respondent.

DALTON, Judge.

This is an appeal from a judgment for $2,500 entered in favor of the State of Missouri and against defendant John George Haverstick and Carolina Casualty Insurance Company, a corporation, in an action instituted by the State to recover on an appearance bond in a criminal case where the defendant failed to appear.

Jurisdiction of the appeal is in this court, since it is a civil proceeding to which the State is a party. Art. V, Sec. 3, Constitution of Missouri, V.A.M.S.; State v. Haney, Mo.Sup., 277 S.W.2d 632, 633, 55 A.L.R.2d 717; State v. Haverstick, Mo.App., 317 S.W.2d 654 (where the cause was transferred to this court).

The record presented on appeal shows that a transcript of proceedings in the Magistrate Court of Bates County, Missouri, in Case No. 836, State of Missouri v. John George Haverstick, was filed in the circuit court of said county on February 19, 1957, from which transcript it appears that, on June 11, 1953, the prosecuting attorney of said county filed his affidavit in said magistrate court for a state warrant charging defendant, John George Haverstick, with forgery in eight counts, to wit, for felonies committed in said county on May 15, 1953; that a warrant was issued for defendant on said charges and delivered to the sheriff of the county; that defendant was not arrested on said warrant until November 10, 1956; that defendant was arraigned on November 16, 1956, and entered a plea of 'not guilty'; that a date for a preliminary hearing was set and the amount of bond pending preliminary hearing was fixed in the sum of $2,500; and that the defendant duly filed bond, which was approved and ordered recorded. A motion to dismiss the pending charges was thereafter heard on February 18, 1957, and overruled. The transcript of proceedings in the magistrate court further recites: 'And now comes on to be heard the Preliminary Trial of said Defendant, and the Defendant, not appearing before the Court according to the condition of the Recognizance heretofore filed herein by the Defendant, and in accordance with the Orders of Continuances heretofore entered of Record; the Court, doth herewith record herein default on said Recognizance on the part of said Defendant. And the Court herewith certifies the Recognizance, with this Record of Default to the Circuit Court of Bates County, Missouri, and it is ordered that a Transcript of these proceedings be filed in said Circuit Court.' See Secs. 544.330 and 544.640 RSMo 1949, V.A.M.S.

Thereafter, on April 8, 1957, a petition to declare forfeiture of recognizance and for writ of scire facias was filed in the circuit court of said county. It stated: 'That John George Haverstick, defendant herein, was, on the 11th., day of June 1953, charged in the Magistrate Court of Bates County, Missouri, with the crime of forgery in eight (8) counts on or about the 15th., day of May, 1953, in the County of Bates, State of Missouri; that a Warrant was issued for the arrest of the said John George Haverstick, and said Warrant delivered to the Sheriff of Bates County Missouri; that the said John George Haverstick was taken into custody by the authorities of Cole County, Missouri on the 30th., day of May, 1953, charged with the crime of forgery in the County of Cole, State of Missouri; that the said John George Haverstick was sentenced by the Circuit Court of Cole County, Missouri, to a term of three (3) years in the State Penitentiary of Missouri, Jefferson City, Missouri; that the Prosecuting Attorney of Bates County, Missouri, on or about September 1, 1953, filed a Detainer with the Warden of the State Penitentiary of Missouri for the said John George Haverstick; that the said John George Haverstick was released from the State Penitentiary, aforesaid, on or about the 16th., day of November, 1956, and was on that date brought before the Magistrate Court for Bates County, Missouri, by the Sheriff of Bates County, Missouri.'

The petition further alleged that the defendant made a request for a preliminary hearing; that defendant gave bond and was released pending such hearing; and that, thereafter, the defendant failed to appear in the magistrate court and a default was entered against him for failure to appear in accordance with the provisions of said bond. The petition concluded with a prayer for 'the judgment of the court that the recognizance of John George Haverstick, defendant, in the penal sum of $2500, Carolina Casualty Insurance Company, as Surety, be forfeited; [and] that a writ of scire facias issue.'

Thereafter, the court entered the order requested and the writ of scire facias was issued and served on the defendants. Defendants were required to appear in the Circuit Court of Bates County '* * * to show cause, if any they have, why the judgment of forfeiture should not be made absolute, and why execution should not issue in favor of the State of Missouri, according to the force, form and effect of said recognizance.'

Defendant Carolina Casualty Insurance Company timely appeared and filed answer to the said petition, in part, as follows:

'The recognizance mentioned in said petition and in said writ, to-wit: a bond in felony case given before preliminary examination, executed by John George Haverstick, as Principal, and Carolina Casualty Insurance Company, by John W. Welby, attorney-in-fact, under date of November 16, 1956, is null, void and of no effect as at the time of the execution of said recognizance the said John George Haverstick was being unlawfully held in custody under a warrant issued by the Magistrate Court of Bates County, Missouri, on the 11th day of June, 1953, in Case No. 838, State of Missouri, Plaintiff, vs. John George Haverstick, Defendant, charging the defendant, John George Haverstick, with crimes of forgery in eight counts, all alleged to have been committed on or about the 15th day of May, 1953, more than three years prior to the date and time of the execution of the recognizance in question and no information charging said defendant with said crimes had been filed within three years after the said defendant was alleged to have committed the crimes, if any, mentioned in the said warrant and the prosecution of the said defendant for the sale alleged crimes was barred under the provisions of Section 541.200 RSMo 1949 [V.A.M.S.] and by reason of the foregoing facts there was no consideration for said bond moving from the State of Missouri to either the said John George Haverstick or Carolina Casualty Insurance Company.'

It will be noted that the defense is based upon facts which clearly appear from the plaintiff's own petition.

Defendant Carolina Casualty Insurance Company also filed a motion attacking the petition for failure to state facts sufficient to constitute a claim upon which relief could be granted, and upon other grounds, which said motion was denied.

The cause came on for trial on August 28, 1957, and it appearing that there was no dispute about the fact of defendant's default in appearance in the magistrate court, because of imprisonment in the Arkansas State Penitentiary at Varner, Arkansas, and the other facts alleged in the petition or shown by the transcript from the magistrate's court not being in dispute, a judgment was entered in favor of plaintiff and against the defendants for $2,500. Defendant Haverstick's incarceration in the penitentiary in Arkansas of course constituted no defense to the action. State v. Horn, 70 Mo. 466.

Defendant Carolina Casualty Insurance Company thereafter filed a motion styled: 'Separate motion of defendant Carolina Casualty Insurance Company, a corporation, to set aside and vacate the finding and judgment herein and (1) to enter judgment in favor of said defendant, or in the alternative (2) to grant said defendant a new trial, or in the alternative (3) to enter a remittiture in favor of said defendant.' The motion was overruled and said defendant appealed from the judgment entered against it.

Appellant contends that the court erred in entering the judgment appealed from because the petition to declare a forfeiture of the recognizance and for the writ of scire facias fails to state facts sufficient to constitute a claim upon which relief can be granted, since on the facts stated therein it appears that, at the time of the execution and filing of the recognizance, any prosecution of the defendant Haverstick was barred by the three-year statute of limitations (Section 541.200 RSMo 1949, V.A.M.S.); that the defendant Haverstick was unlawfully held in custody over objection at the time of the execution and filing of the recognizance; and that the recognizance was therefore null, void and of no effect and no recovery can be had thereon. Appellant further points out that the facts are not in dispute, but clearly appear from the transcript of the magistrate and from the petition based thereon, to wit, that the alleged felonies were committed on or about May 15, 1953; that the affidavit for a state warrant was executed and filed on June 11, 1953; that a state warrant issued thereon on said date; that, on May 30, 1953, defendant was arrested in Cole County on a felony charge and sentenced to the state penitentiary for three years; that on or about September 1, 1953, the Prosecuting Attorney of Bates County filed a detainer warrant with the warden of the state penitentiary for defendant Haverstick; that said defendant was released by the penitentiary on or about November 16, 1956; that he was thereafter arrested and taken before the Magistrate Court of Bates County and arraigned; that he entered a plea of not guilty; and that the...