State v. Woerner

• Decision Date: 31 October 1862
• Citation: 33 Mo. 216
• Parties: THE STATE OF MISSOURI, Respondent, v. J. G. WOERNER, Appellant.
• Court: Missouri Supreme Court

33 Mo. 216

THE STATE OF MISSOURI, Respondent,

v.J. G. WOERNER, Appellant.

Supreme Court of Missouri.

October Term, 1862.

Appeal from St. Louis Criminal Court.

C. D. Colman, for appellant.

I. The St. Louis Criminal Court possesses no jurisdiction or authority to entertain any proceedings or to determine any question in relation to the rights of parties to a forfeited recognizance:

1. The St. Louis Criminal Court has such “original and appellate jurisdiction” as is “vested in the several Circuit Courts of this State in criminal cases,” and in none other. (R. C. 1855, p. 1589, § 1.)

2. The proceedings for the enforcement of the undertaking of the appellant are, in their nature and character, civil, as distinguished from criminal. (See 3 Gil. Ill. 82; R. C. 1855, p. 1205, § 20, and p. 853, § 1; State v. Hopkins, 30 Mo. 404-5.)

S. Voullaire, for respondent.

I. The St. Louis Criminal Court had power to issue a scire facias upon a recognizance in the present case, and had power to render judgment upon said scire facias. (R. C. 1855, p. 1589, § 1, 2, 3 & 12; State v. Ramsey, 23 Mo. 327; State v. Randolph, 22 Mo. 467, and authorities therein cited.)

BATES, Judge, delivered the opinion of the court.

On the 13th of August, 1859, Henry Schaeffer and the defendant Woerner, before a judge of the St. Louis County Court, entered into a recognizance, conditioned for Schaeffer's appearance before the St. Louis Criminal Court on the first day of the next term and from day to day during the term, and on the first day of any future term to which the cause might be continued, to answer an indictment preferred against Schaeffer for grand larceny, and that he should not depart the court without leave thereof.

There was then no indictment against Schaeffer, but on the 19th of September following an indictment against him was returned by the grand jury into the Criminal Court.

On the 28th September the recognizance was forfeited, and scire facias ordered against Schaeffer and Woerner. The scire facias was issued on the 8th of October, and served on Woerner on the 7th of November, and a return was made that Schaeffer was not found. Neither of them appeared or pleaded to the scire facias, and on the 13th of January, 1860, execution was awarded against Woerner. It does not appear that anything further was done as to Schaeffer. On the next day Woerner filed a motion to arrest the judgment, for the following reasons:

1. Because the court has no power to issue a scire facias upon a recognizance not taken in this court.

2. Because the plaintiff in this court has no power under the statute creating it, or otherwise, to sue on a recognizance by scire facias.

3. Because this court has no power to render the judgment which has been entered upon this cause.

4. Because all the proceedings are irregular, and the judgment against this defendant is absolutely null and void.

The Criminal Court overruled the motion, and Woerner appealed to this court.

We can only review questions made in the court below. The defendant having failed to plead to the scire facias, we can only look to such questions as arise upon his motion in arrest of judgment. Strictly speaking, there is no judgment in the case. The recognizance is a debt confessed to the State, (which may be avoided upon the conditions stated,) and when forfeited is said to be equivalent to a judgment, but no execution against the cognizors is awarded until after the return of a scire facias; so that, for practical purposes, the decision of the court upon the issues made upon the scire facias or the confession of its truth, by default or otherwise, may be regarded as the...