State v. Hindman

• Citation: 159 Ind. 586, 65 N.E. 911
• Case Date: January 07, 1903
• Court: Supreme Court of Indiana

159 Ind. 586

65 N.E. 911

STATE

v.HINDMAN et al.

Supreme Court of Indiana.

Jan. 7, 1903.

Appeal from circuit court, Greene county; A. G. Cavins, Special Judge.

Action by the state against Charles Hindman and others on a recognizance bond. Judgment for defendants, and plaintiff appeals. Transferred from appellate court under Act March 13, 1901 (Acts 1901, p. 590). Affirmed.

E. W. McIntosh, T. E. Slinkard, W. L. Taylor, Atty. Gen., Merrill Moores, and C. C. Hadley, for the State. Seymour Riddle, for appellee.

DOWLING, J.

Action upon a recognizance, taken by a justice of the peace, the condition of which was that the appellee, Charles Hindman, should appear before the Greene circuit court on the first day of its next term to answer a charge of petit larceny, and abide the judgment of the court. The complaint alleged a breach of the bond, in that the appellee failed to appear. In addition to the general denial, the appellees filed a special plea, alleging that the said Charles Hindman was not called at any term of the court, and that no forfeiture of his recognizance was taken; but that after the final adjournment of the court said court was irregularly reconvened in the nighttime, and that the appellee was then called, and a forfeiture taken. A cross-complaint stating the same facts was filed by the appellees, and a vacation of the order of forfeiture was demanded. Reply in denial of second paragraph of answer. A motion to strike out the cross-complaint and a demurrer to that pleading were overruled. Special reply to second paragraph of answer, alleging that after the adjournment of the Greene circuit court it was regularly reconvened, and the appellee Charles Hindman called and defaulted. A second paragraph of answer to the cross-complaint was filed, alleging the same facts stated in the special reply. Demurrers to the second paragraph of appellant's reply to the second paragraph of appellee's answer and to the second paragraph of appellant's answer to the cross-complaint were sustained. A trial by a jury resulted in a verdict for the appellees, and, over a motion for a new trial, judgment was rendered on the verdict.

The questions presented are: First, whether a defendant in an action upon a recognizance alleged to have been forfeited may show by way of defense that the supposed forfeiture was not in fact taken during the term at which the defendant was recognized to appear, but after the final adjournment, and in vacation; and, second, if these facts are not available by way of answer because a collateral attack upon the proceedings of the court as they appear of record, whether they may be taken advantage of by cross-complaint or counterclaim. The liability of the principal and his sureties upon a recognizance in a criminal case is made to depend upon the neglect of the defendant, without sufficient excuse, to appear for trial or judgment, or upon any other occasion when his presence may be lawfully required accordingto the condition of his bond. On such failure to appear the statute provides that the court shall direct the fact to be entered upon its minutes, and thereupon the recognizance is forfeited. As soon as the fact of such forfeiture is entered, the prosecuting attorney must proceed against the bail upon the recognizance. Burns' Rev. St. 1901, §§ 1790, 1791 (Rev. St. 1881, §§ 147, 148; Horner's Rev. St. 1901, §§ 1721, 1722). Until a forfeiture is taken by the proper court, no action can be maintained upon the recognizance, and the fact of such forfeiture must be alleged in the complaint. Patterson v. State, 12 Ind. 86; Votaw v. State, Id. 497; Kiser v. State, 13 Ind. 80;Hawkins v. State, 24 Ind. 288;Gachenheimer v. State, 28 Ind. 91;Hannum v. State, 38 Ind. 32;Friedline v. State, 93 Ind. 366;Rubush v. State, 112 Ind. 107, 13 N. E. 877;McGuire v. State, 124 Ind. 536, 23 N. E. 85, 25 N. E. 11. And such forfeiture must be taken at the term at which the defendant is required by his recognizance to appear. It cannot be taken at a subsequent term. Kiser v. State, 13 Ind. 80.

It appears from the answer and the cross-complaint not only that no forfeiture was taken during the term specified in the recognizance, but that the supposed forfeiture was taken in vacation. The calling of the defendant, and, upon his neglect to appear, the forfeiture of his recognizance, were judicial acts, which could be performed in term time only. If anything in the record disclosed that such acts were done in vacation, the proceeding would be void. Newman v. Hammond, 46 Ind. 119; Davis v. Fish, 1 G. Greene, 406, 48 Am. Dec. 387; In re Terrill, 52 Kan. 29, 34 Pac. 457, 39 Am. St. Rep. 327. But it did not appear from the complaint, nor was it alleged in the answer, that there was anything in the record indicating that the forfeiture was not regularly taken at the proper time during the term, and while the court was in session. This being so, the action of the court was not subject to collateral attack, and an attempt by answer setting up fraud, mistake, or any other matter outside the record to impeach or evade such action was such attack, and the demurrer to the answer should have been sustained. Oster v. Broe (at the present term) 64 N. E. 918, 921;Emerick v. Miller (at the present term) 64 N. E. 28, 32;Weiss v. Guerineau, 109 Ind. 438, 443, 444, 9 N. E. 399; Van Fleet, Coll. Attack, § 855; Black, Judgm. (2d Ed.) 245, and cases cited in note 1, §§ 972, 973; Railway Co. v. Harmless, 124 Ind. 25, 24 N. E. 369. While the validity of the proceedings as they appeared of record could not be questioned by an answer, they were subject to a direct attack for fraud relating to an act in securing jurisdiction, or concerning the trial, or the judicial proceedings themselves. 17 Am. & Eng. Enc. Law, 828, 829. It is said in Freem. Judgm. § 99, that: “The maxim that fraud vitiates everything is applicable to judgments. Upon proof of fraud or collusion in their procurement, they may be vacated at any time.” In School Tp. v. Irwin, 150 Ind. 12, 17, 49 N. E. 806, 807, this court stated the rule in such cases, with its limitations, as follows: “The fraud that will annul or vacate a judgment is not that arising out of the facts which were actually or necessarily in issue in the cause in which it was rendered. The rule is that the fraud which vitiates a judgment must arise out of the acts of the prevailing party, by which his adversary has been prevented from presenting the merits of his side of the case, or by which the jurisdiction of the court has been imposed upon. Or, in other words, the fraud relied on must relate to some act in securing jurisdiction, or as to something done concerning the trial or the judicial proceedings themselves; and the rule has no application to cases of fraud in the transaction, or matters connected with it out of which the legal controversy arose.” The adjournment of the court without day ended its power over the business and records of the term. Newman v. Hammond, 46 Ind. 119;Ferger v. Wesler, 35 Ind. 53; 1 Cycl. Pl. & Pr. 203, and note 3. After such adjournment no defaults could be taken, no judgments rendered, no orders made, or proceedings had as of the term. All persons summoned or recognized to appear at the term, who had not been called, were authorized to depart from the court, to presume that no further proceedings would be taken against them at that term, and to cease their attendance upon the court until its next term. After the announcement of a final adjournment, the statutes gave the judge no authority to reconvene the court, or to hold an adjourned term on the same, or on any subsequent day, without the notice prescribed by law. Burns' Rev. St. 1901, § 1443. The action of any party, or his attorney, in causing defaults to be entered, or judgments to be rendered, after such final adjournment, would, in legal effect, be a fraud upon the person defaulted, or against whom the order or judgment was made or rendered; and for such fraud the judgment, order, or proceeding so obtained could be set aside or vacated in a direct action in the same court between the same parties or their representatives for the annulment of the judgment. Grattan v....