Territory Montana v. Hildebrand

• Decision Date: 31 January 1876
• Citation: 2 Mont. 426
• Parties: TERRITORY OF MONTANA, appellant, v. HILDEBRAND, respondent.
• Court: Montana Supreme Court

2 Mont. 426

TERRITORY OF MONTANA, appellant,

v.HILDEBRAND, respondent.

Supreme Court of the Territory of Montana.

January Term, 1876.

Appeal from Third District, Jefferson County.

J. G. SPRATT, District Attorney, First District, for appellant.

SHOBER & LOWRY and JOHNSTON & TOOLE, for respondent.

KNOWLES, J.

The respondents ask to have the appeal in this case dismissed for the following reasons:

First. No appeal lies from an order sustaining a demurrer.

The record shows that the appeal in this case was taken from the final judgment entered in the court below. This ground of the motion is not then based upon any fact in the record and cannot be sustained.

Second. The right of appeal in civil cases is not given to the Territory of Montana by any statutory provision.

In the case of Langford v. King, 1 Mon. 33, this court held that Montana Territory was a government. Our Organic Act calls it a temporary government. From the nature of this government it must of necessity be a body politic, or artificial person, a corporation. As such, having the right to make contracts, it has the right to sue upon them without any statute empowering it to do so. Catton v. United States, 11 How. (U. S.) 229.

This is an action upon a recognizance to recover the penalty therein specified. Hence it is a civil action and not a criminal proceeding. The Territory having the right to become a party plaintiff to civil proceedings has the same rights that any other party in civil litigation has. The statutes of the Territory provide that any party aggrieved may appeal from the district to the supreme court in certain cases. The appeal in this case is from a final judgment and is proper.

Motion denied.

KNOWLES, J.

This is an action on a recognizance executed by the respondents, Hildebrand, Quinn and Smith, to Montana Territory, in the sum of $1,500, conditioned to secure the appearance of Wm. E. Grinnell at the October term of the district court for Jefferson county, at Radersburg, for the year A. D. 1874. The defendants demurred to the complaint herein, alleging that it was defective in many particulars. Some of the objections will be considered hereafter. The court sustained the demurrer. To this ruling the plaintiff excepted and appeals to this court, assigning this ruling as error. The complaint in substance sets forth that Grinnell, on the 26th day of August, A. D. 1874, was arrested on a complaint filed before James R. Weston, probate judge for the county of Jefferson, Montana Territory, and arraigned for examination upon the charge of an assault with intent to commit murder, and it appearing to the said judge that there was probable cause for believing that said Grinnell was guilty of said offense, and said Grinnell having waived a preliminary examination, it was thereupon ordered by said court that said Grinnell be held to answer the said charge at the next term of the district court to be held in said county, and that the said Grinnell be admitted to bail in the sum of $1,500. Whereupon the defendants, Hildebrand, Quinn and Smith, entered into said recognizance, the condition of which is in these words: “If the said William E. Grinnell shall personally appear at the next term of the district court, in and for said Jefferson county, Montana Territory, being the second Monday in October, 1874, and on the first day thereof, to answer to any indictment that may be brought or made against him for the offense of an attempt to commit murder, as alleged in a complaint now on file in the probate court of said county and Territory, and to do and receive what shall be by said court then and there enjoined upon him, the said Wm. E. Grinnell, and shall not depart from said court without leave.”

The complaint further sets forth that Grinnell was indicted for the crime of an assault with intent to commit murder, and that the recognizance was forfeited.

It is claimed by the respondents that the Territory of Montana is not the proper party plaintiff in this action; that the action should be prosecuted in the name of the county commissioners of Jefferson county and the district attorney, they being, it is alleged, the real parties in interest.

It is true that the penalties recovered on any forfeited recognizance go to the county. The county may receive a benefit from the action, but it does not follow that the action should be prosecuted in the name of the county commissioners. All criminal prosecutions are prosecuted in the name of the Territory as plaintiff. This recognizance follows the forms prescribed in the statutes of the first legislative assembly of this Territory, and it is doubtful if the act of that assembly on this subject has ever been repealed. But whether it has been repealed or not, it is proper that all recognizances should be executed to the Territory of Montana. There are no provisions of the statute that authorize the execution of a recognizance to a county. But, if it were proper to execute a recognizance to a county, this recognizance would be good. The Territory may be the trustee of an express trust. Many of the county officers of this Territory execute bonds to the Territory, and it takes these bonds as a trustee of an express trust for the benefit of any citizen of the Territory who may be damaged by the failure of such officer to perform his duties as required by law. In Taaffe v. Rosenthal, 7 Cal. 514, the court held that a bond executed to the State of California in an attachment proceeding, in accordance with the provisions of the statutes of that State, was good, and the sureties held thereon. That is a stronger case than this, even if the county was the proper party to a recognizance. In Hawkins v. State, 24 Ind. 288, the court held that the State was a proper party to a recognizance, although the money went to the school fund of the county. The proposition that the district attorney, because he receives a compensation of ten per cent on all moneys collected by him, should be a party to all actions on a recognizance, is not worthy of any consideration. The trustee of an express trust can maintain a suit in his own name, and if the law points out who is the beneficiary in the action, there need be no allegations showing for whose benefit the action is prosecuted. No party is required to allege the law or prove it.

The respondent alleges that there is a misjoinder of parties defendant; that Grinnell is not a proper party in an action on this recognizance. This is true, but Hildebrand, Quinn and Smith cannot object to this error. The party improperly joined is the only one who can take advantage of the same.

It is claimed that neither the recognizance or complaint shows any jurisdiction in the officer taking it, and that the recognizance shows no cause for its execution. It is not necessary that the recognizance should show the jurisdiction of the officer taking it, or any cause for its execution. That was the rule under the common-law practice, but has been abolished by section 257 of our Criminal Practice Act. It is as follows:

“No action upon a recognizance may be defeated for any defect of form or any omission of recital, condition, or undertaking therein, or neglect of the clerk to indorse or record it; but the sureties shall be bound thereby to the amount specified therein. A recognizance may be recorded after execution is awarded.” This statute was enacted for the purpose of abolishing those formal and technical recitals in a recognizance showing...