State v. Wilder
| Decision Date | 16 April 1880 |
| Docket Number | CASE 753. |
| Parties | STATE v. WILDER. STATE v. JACKSON. |
| Court | South Carolina Supreme Court |
1. The Court of General Sessions has jurisdiction under proceedings by scire facias to estreat a recognizance given to secure the appearance before that court of a person charged with crime. Section 443 of the code of procedure relates only to writs of scire facias as a civil remedy.
2. Sections 8 and 9 of Chapter CXLII. of the general statutes are not in conflict with Article IV., Section 1, of the constitution, but only provide a means by which the Court of General Sessions may carry into effect its unquestioned powers.
3. The mode suggested by which alone matters omitted from the brief may be brought to the attention of this court. Facts appearing only in argument of counsel will not be considered.
Before SHAW, J., Richland, April, 1878.
These were rules issued by the state against Charles M. Wilder and Ann E. Jackson, to show cause why a recognizance entered into by them as sureties for the appearance of one Houston at the Court of General Sessions to answer to a bill of indictment should not be forfeited, Houston having failed to appear. The defendants, for cause, showed that the writ of scire facias has been abolished by Section 443 of the code of procedure, and the remedies obtainable under that form must be obtained by civil actions.
The Circuit judge overruled the returns, declared the recognizance forfeited, and ordered execution to issue for the collection of the penalty, if not paid by a day named.
Defendants appealed. In the argument of appellant's counsel in this court, the further ground was taken that the recognizance had not been acknowledged in the presence of either a judge or trial justice, and that there was no certificate from either of such officers of such acknowledgment; and that therefore the recognizance was void under Chapter CXLII., Section 7, of the general statutes.
Mr. John Bauskett , for appellants.
Mr. Solicitor Abney , contra.
These two cases, involving the same question, were heard and will be considered together. That question is, whether the Court of General Sessions has jurisdiction to estreat a recognizance given to secure the appearance before said court of a person charged with crime to answer to a bill of indictment to be preferred against him.
The grounds upon which jurisdiction is denied are, that the provisions of Sections 8 and 9 of Chapter CXLII., (Gen Stat. 750,) under which the proceedings in these cases were instituted, are practically identical with the proceeding by writ of scire facias , and that writ being abolished by Section 443 of the code of procedure, and the remedies previously obtainable in that form provided for by a civil action, the Court of General Sessions, which, under the constitution, has no civil jurisdiction, could not exercise the jurisdiction claimed for it in these cases. A sufficient answer to this is that the second part of the code, in which the provision abolishing the writ of scire facias is found, relates only to civil actions, and cannot, therefore, be construed so as to apply to criminal action or to any proceedings in the court invested with jurisdiction of such actions. This provision must, therefore, be construed as applying to that writ only, as it had heretofore been used to obtain or enforce a civil right as contra-distinguished from a criminal proceeding. There is no doubt but that at the time of the adoption of the code the writ of scire facias could be used in the Court of Common Pleas as a civil remedy merely, for example, to revive a judgment, and the provision of the code unquestionably abolished it as a remedy in such and the like cases. But it is equally true that the writ could then be used in the Court of General Sessions, under the provisions of the act of 1787, (5 Stat. 13,) as a remedy for the enforcement of...
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