State v. Montague

• Court: Kansas Supreme Court
• Writing for the Court: SMITH, Justice.
• Citation: State v. Montague, 138 Kan. 696, 27 P.2d 222 (Kan. 1933)
• Decision Date: 09 December 1933
• Docket Number: 31365.
• Parties: STATE v. MONTAGUE et al.

27 P.2d 222

138 Kan. 696

STATE v. MONTAGUE et al.

No. 31365.

Supreme Court of Kansas

December 9, 1933

Syllabus by the Court.

Where surety on recognizance in criminal prosecution surrenders principal and moves to vacate forfeiture because of satisfactory excuse why principal had not complied with bond denial of motion constitutes res judicata in subsequent action on bond (Rev. St. 1923, 62--1221, 62--1225).

Where surety on recognizance in criminal prosecution surrenders principal and moves to vacate forfeiture, denial of motion constitutes appealable "final order" (Rev. St 1923, 60--3303).

Answer that recognizance given in criminal prosecution was illegal and void because not executed and filed in district court in manner prescribed by law held not to state facts raising issue.

Fact that sheriff required nonresident of state to deposit collateral security before sheriff would accept nonresident as bail in recognizance held not to render recognizance invalid.

Trial judge may refuse application for change of venue, where he knows that he is without bias or prejudice.

1. Where a recognizance in a criminal prosecution has been ordered forfeited and subsequently the principal on the recognizance is surrendered by the surety and a motion to set aside the forfeiture is filed on the ground that there was a satisfactory excuse why the principal had not complied with the terms of the bond, and the motion to set aside the forfeiture is denied, the question of whether or not the excuse was satisfactory is res adjudicata and cannot be pleaded as a defense in the answer of the surety in defense of a suit on the bond.

2. Where a recognizance in a criminal prosecution has been ordered forfeited on account of the failure of the principal on the bond to comply with its terms, and subsequently the principal is surrendered and a motion to set aside the forfeiture on the ground that there was a satisfactory excuse why the principal had not complied with the terms of the recognizance, the order of the court overruling the motion to set aside the forfeiture is such a final order as is appealable to the Supreme Court.

3. In a suit on a forfeited recognizance, the parts of the answer remaining after certain parts have been held to be res adjudicata are examined, and held not to state facts sufficient to constitute any defense to the cause of action pleaded in the petition.

4. The fact that the sheriff in custody of one charged with crime requires a nonresident of the state to deposit collateral security with him before he will accept him as bail in a recognizance for the one charged with crime does not render the recognizance invalid or void.

5. On an application for a change of venue on account of bias and prejudice of the trial judge, he may take into consideration what he knows of his own knowledge concerning the matter to be passed on, and may refuse the application where he knows that he has no bias or prejudice.

Appeal from District Court, Johnson County; Garfield A. Roberds Judge.

Action by the State against P. W. Montague and others. Judgment for plaintiff, and defendants appeal.

Rolla W. Coleman, of Kansas City, Mo., John W. Breyfogle, Jr., of Olathe, and James M. Rader, of Kansas City, Mo., for appellant.

Clayton Brenner and S. T. Seaton, both of Olathe, for the State.

SMITH Justice.

This was an action by the state on an appearance bond. Judgment was for plaintiff. Defendants appeal.

P. W Montague was arrested on May 9, 1931, charged with a violation of the prohibitory laws. On May 29, 1931, he entered into a recognizance for his appearance in the district court of Johnson county on September 8, 1931. This recognizance was signed by P. W. Montague, J. A. Johnson, and Ella Montague. Johnson was a nonresident of Kansas, and the sheriff refund to accept him on the recognizance until Johnson had assigned to him certain building and loan certificates.

Montague did not appear for trial on September 8. On September 9, 1931, an order was entered forfeiting the recognizance. A bench warrant was issued for Montague, and the county attorney was ordered to proceed with the collection of the bond.

On October 31, 1931, Johnson brought Montague to the courthouse in Olathe, stating that he wanted to give a new bond for Montague. While they were at the courthouse, Montague was arrested on the bench warrant issued on September 9. On January 23, 1932, Johnson filed a motion to set aside the forfeiture. This motion was heard by the district court and denied. No appeal was taken from that order.

This suit to collect on the forfeited recognizance was begun on January 4, 1932, so that the motion to set aside the forfeiture was made in the criminal case while the civil suit was pending. This is not important except that it shows that with the suit pending defendant Johnson chose to go into the criminal case and ask that the forfeiture be set aside. Johnson, the defendant, filed his answer in which he admitted the execution of the recognizance. The answer denied that the instrument was a valid and binding instrument for the reason that it was not made, executed, and delivered and filed in the district court in the manner prescribed by statute.

The answer then admitted that Johnson executed and delivered to the sheriff certain building and loan stock to be held as collateral security to the appearance bond. Defendant then denied that the assignment was valid for the reason that the instrument was not a legal or valid appearance bond and for the reason that the sheriff demanded the assignment to him of the building and loan stock as condition to accepting the recognizance, and neither the sheriff nor the court had authority to require collateral on an appearance bond, and such a requirement makes the bond illegal and void.

Paragraph 4 of the answer then admitted that Montague failed to appear on the day set, but said the forfeiture should not have been made by the court for the reason that Montague was seriously ill and in need of an operation for hernia and on that date was in a hospital in Kansas City undergoing treatment, and that on account of this illness it was physically impossible for defendant Johnson to produce Montague in court on September 8, 1931.

Paragraph 5 of the answer further alleged that Montague's attorney had an arrangement with the county attorney of Johnson county whereby the case of State v. Montague was to be continued from the September term to the January term, and on account of this arrangement Montague did not have his appearance, and that Johnson, having been informed of the continuance and believed Montague too ill to be in court, so did not appear.

Paragraph 6 of the answer then denied that Johnson was indebted to the state of Kansas on the recognizance for the reason that it was illegal and void and for the further reason that Johnson had fully complied with the provisions of R. S. 62--1221 by surrendering Montague to the proper officials after forfeiture of the recognizance and before final judgment on it and that at the same term of court Montague had pleaded guilty and received sentence and Johnson had paid the costs in the criminal case and would pay the costs in the civil case on order of the court; that the defendant J. A. Johnson has presented a satisfactory excuse for the failure of Montague to comply with the conditions of the appearance bond, and that therefore Johnson should be discharged from any liability; that the failure of P. W. Montague to appear before the court at the time stipulated in the bond was not due to any lack of good faith, fraud, or collusion on the part of Johnson; and that he had at all times kept faith with the court, and the reason for Montague's failure to appear at the time above stated was believed by Johnson to be for the reasons set out.

It should be noted here that the hearing on the motion to set aside the forfeiture was on affidavits furnished by both parties. The matter contained in the motion and the affidavits covers the same facts that are set up in paragraphs 4, 5, and 6 of the answer of Johnson.

Upon the filing of this answer, the state filed a motion asking the court to determine that the matter set up in the answer of Johnson had been fully litigated in the motions to set aside the forfeiture. On the hearing of this motion, the court examined the files in the criminal case and found that the matters set up in paragraphs 4, 5, and 6 of the answer of Johnson were res adjudicata and not available to defendant Johnson in this case. After this order, counsel for the state moved the court for judgment on the pleadings, and it was allowed.

It is from that judgment that this appeal is taken.

Defendant Johnson argues that he complied with the terms of R. S. 62--1221. That section is as follows: "The bail, at any time before final judgment against him upon a forfeited recognizance, may surrender his principal in open court or to the sheriff, and upon payment of all costs, and upon presenting a satisfactory excuse for the failure of his principal to comply with the conditions of said recognizance, may thereupon be discharged from any further liability thereon."

He argues that action upon a motion filed pursuant to that section is not a final adjudication by the court as to liability on the recognizance, and that no final judgment is obtained until the suit has been filed in accordance with the terms of R. S. 62-- 1225. That section is as follows: "Action against bail. The prosecuting attorney may at any time after the adjournment of the court proceed by action against the bail upon the recognizance. Said action shall be governed by the rules of civil pleading as far as applicable."

The argument is that action under this section is...