State v. Lagoni

• Citation: 76 P. 1044,30 Mont. 472
• Parties: STATE v. LAGONI et al.
• Decision Date: 03 June 1904
• Court: United States State Supreme Court of Montana

76 P. 1044

30 Mont. 472

STATE v. LAGONI et al.

Supreme Court of Montana

June 3, 1904

Commissioners' Opinion. Appeal from District Court, Flathead County; D. F Smith, Judge.

Action by the state of Montana against N. P. Lagoni and another. From a judgment for plaintiff, defendants appeal. Reversed.

M. D Baldwin and Sidney M. Logan, for appellants.

Jas Donovan, for respondent.

CALLAWAY C.

The defendants have appealed from a judgment against them and from an order denying their motion for a new trial.

1. They assert that the complaint filed against them does not state facts sufficient to constitute a cause of action. That pleading states that on the 1st day of May, 1901, the defendants covenanted with the plaintiff under their hands and seals to pay the plaintiff the sum of $1,000; "that said obligation was upon the express condition thereunder written that whereas, an order having been made on the 25th day of April, A. D. 1901, by A. McArthur, a justice of the peace of Kalispell township, Flathead county, Montana that James E. Finch be held to answer to the district court of the Eleventh Judicial District in and for Flathead county, Montana, on a charge of burglary, upon which he was admitted to bail in the sum of one thousand dollars, and thereupon said defendants tendered said bond to said A. McArthur, a justice of the peace as aforesaid, and said justice, then and there having full power and authority to accept and approve said bond, duly approved the said bond, and in consideration of the execution and delivery and giving of said bond ordered the release of said defendant mentioned therein, to wit, James E. Finch, and thereupon and in consideration thereof said Finch was released and discharged from custody"; that according to the terms of the bond defendants covenanted that Finch would appear at all times required in said court (probably meaning the district court), but that Finch failed to appear and answer to an information filed against him in the district court. A copy of the undertaking, which substantially complies with the requirements of section 2351 of the Penal Code, is attached to the complaint, marked "Exhibit A." No objection is made to the form or sufficiency of the undertaking. It is apparent that there is a want of substance in this complaint. A justice's court is of inferior jurisdiction, and no presumptions are to be indulged in favor of the regularity of its proceedings. Layton v. Trapp, 20 Mont. 453, 52 P. 208; State v. Laurandeau, 21 Mont. 216, 53 P. 536. The Constitution provides that a justice's court shall have jurisdiction as an examining court in cases of felony (article 8, § 20), and the statute provides the method of procedure; but that jurisdiction must, of course, be properly invoked. Was the jurisdiction of the justice's court properly invoked against Finch? If it was not, then the bail bond is nudum pactum. Deer Lodge County v. At, 3 Mont. 168. Before the justice could have made a valid order holding Finch to answer, he must have been charged, by complaint on oath filed with the justice, of having committed a public offense in the county of Flat-head. He must have been brought before the justice on such charge, and have been examined upon it, unless he waived examination. If, upon examination, it appeared that a public offense cognizable by the district court had been committed in the county of Flat-head, and there was sufficient cause to believe Finch guilty thereof, it was the duty of the justice to hold him to answer, and, if Finch waived examination, the duty of the justice was the same. Thereupon, the offence being bailable, it was the duty of the justice to admit Finch to bail, fixing the amount thereof. In Territory v. Hildebrand, 2 Mont. 426, the court said: "While under our statute the jurisdiction of the court taking the recognizance need not be recited therein, nor the proceedings and orders requiring a party to enter into a recognizance for his appearance at court, these facts should appear in a complaint which seeks to recover judgment on such a recognizance.' The recognizance required of a defendant under the statute in force when the Hildebrand Case was decided is practically the same as that required of Finch in this case. The word "recognizance," as then used, in practically synonymous with the word "undertaking," as now employed. The doctrine of the Hildebrand Case was followed in Deer Lodge County v. At, supra, and, while the authorities on this subject are not uniform, we shall not now depart from the rule heretofore established by this court. But a statutory method of pleading the jurisdictional facts is prescribed by section 745 of the Code of Civil Procedure, which reads as follows: "In pleading a judgment, or other determination of a court, officer, or board, it is not necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading must establish on the trial the facts conferring jurisdiction." When the Hildebrand and At Cases were decided, section 67 of the Civil Practice Act (Codified Statutes, 1871-72), which is nearly the same as section 745, supra, was in force, but apparently the court's attention was not called to it. Section 67 was re-enacted as section 101 of the Code of Civil Procedure in the Revised Statutes (1879). Sections 67, 101, and 745 apply to justices' courts. Weaver v. English, 11 Mont. 84, 27 P. 396. So that the complaint in this action should have stated the jurisdictional facts "in ordinary and concise language," or should have stated the judicial capacity of the justice of the peace, and that the order holding Finch to answer was "duly given," "duly made," or "duly given and made." Of course, stating that an order was "duly given and made" is no more than the statement of a conclusion of law, but it is made sufficient by statute, and is for the purpose of obviating the necessity of pleading the jurisdictional facts as the common law requires. The complaint before us does not show that the court had jurisdiction to make the order holding the defendant to answer, nor that the order was duly given and made. The allegation that the justice had full power and authority to accept the bond does not in any wise cure the defect. The complaint is simply a mass of recitals. It states "that whereas an order having been made," and so forth. This is far short of the statutory requirement. It does not even state that the order was "duly" made. "The word 'duly' is most essential. It can hardly be dispensed with and satisfy the terms of the statute. I can imagine no single word that will supply its place. *** The statute gives a short and simple form of pleading a judgment; and it is safest, if not indispensable, that the

statute language be adopted and used when the party seeks to avail himself of this provision of the Code, instead of following the common-law forms in such cases." Hunt v. Dutcher, 13 How. Prac. 538. This case was followed in Harmon v. Comstock Horse & Cattle Company, 9 Mont. 243, 23 P. 470, in which this court also quotes from Young v. Wright, 52 Cal. 410, in part as follows: "A party wishing to avail himself of a provision of this character must comply strictly with its terms. In exonerating him from an obligation which would otherwise be incumbent upon him, the statute prescribes the precise conditions on which he is to be relieved; and they must be strictly performed." And see Weaver v. English, supra; Knight v. Le Beau, 19 Mont. 223, 47 P. 952; Walter v. Mitchell, 25 Mont. 385, 65 P. 5. The reason for the rule that the jurisdictional facts must be pleaded, either directly or by the statutory method, is that neither the inferior court's jurisdiction nor the regularity of its proceedings is presumed, and, in order to prove the liability of the sureties upon the undertaking, it must be shown to be a valid one. Hence it is necessary to show that it was required of the accused by a court having jurisdiction of the offense proceeding under due form of law. While it is true that the consideration for the bond is the release of the accused from custody, yet, if the bond be not lawfully required of the accused, it is nudum pactum.

Defendants further say that the complaint is insufficient because it does not state that the undertaking was filed in the district court. This point is not well taken. If the magistrate had failed to comply with the statute in this regard, the sureties could not take advantage of it. State v. Wrote, 19 Mont. 205, 47 P. 898. However, we note that the complaint fails to state that the district court declared the undertaking forfeited.

The complaint is also fatally defective because it fails to state that the amount due the plaintiff by the terms of the undertaking has not been paid.

2. The state was permitted to introduce in evidence, over defendants' objections, certain papers filed in the justice's court, as well as his docket entries; also the undertaking, and order of the district court declaring it forfeited. The action of the court in admitting this evidence defendants allege to be erroneous, because the complaint fails to state a cause of action, and it appears that the bond was accepted and approved by the justice of the peace five days after he had certified his proceedings in the case to the district court. The sufficiency of the complaint being disposed of, we will take up the second ground of objection. Defendants say the justice, when he undertook to do so, had no jurisdiction to accept and approve the undertaking. Section 2350 of the Penal Code provides: "When the defendant has been held to answer upon an examination for a public offense, the admission to bail may be by the...