The State v. Soudriette

• Decision Date: 10 February 1886
• Docket Number: 12,788
• Citation: 4 N.E. 860,105 Ind. 306
• Parties: The State v. Soudriette et al
• Court: Indiana Supreme Court

4 N.E. 860

105 Ind. 306

The State v. Soudriette et al

No. 12,788

Supreme Court of Indiana

February 10, 1886

From the Knox Circuit Court.

The judgment is reversed with costs, and the cause is remanded with instructions to overrule the demurrer to the complaint and for further proceedings.

W. A Cullop, Prosecuting Attorney, G. W. Shaw and C. B. Kessinger for the State.

OPINION

Howk J.

This was a suit by the State of Indiana upon a forfeited recognizance, executed, as alleged, by the appellees, Charles H. and Ebare Soudriette. The appellees severally demurred to the State's complaint, upon the ground that it did not state facts sufficient to constitute a cause of action, which demurrer was sustained by the court. The State excepted to this ruling, and, declining to amend its complaint or plead further, the court adjudged that it take nothing by its suit.

The State has appealed, and has here assigned as error the sustaining of appellees' demurrer to its complaint.

It was alleged by the State in its complaint herein, that on the 22d day of August, 1885, the appellee Charles H. Soudriette having theretofore been charged at Knox county, Indiana with having obtained goods under false pretences upon affidavit filed before John Wilhelm, mayor of the city of Vincennes, in such county, and having been duly arrested by the marshal of such city, on a warrant issued by the mayor on such charge, he, with the other appellee, executed to the State of Indiana the recognizance for his appearance before such mayor, in the words and figures following, to wit:

"State of Indiana, Knox County, City of Vincennes, sct.

"We, the undersigned, hereby acknowledge ourselves, jointly and severally, bound and indebted to the city of Vincennes in the sum of one hundred dollars, if Charles H. Soudriette shall fail to appear before the mayor of said city at his office therein, on the 22d day of August, 1885, at 8 o'clock A. M., to answer the charge of having violated an ordinance of said city, and abide the order of said court. Witness our hands this 21st day of August, 1885.

(Signed) "C. H. Soudriette.

"Ebare Soudriette.

"Approved: John Wilhelm, Mayor."

And the State alleged that such recognizance was then and there taken and duly approved by said mayor; that thereupon, on the 22d day of August, 1885, the said Charles H. Soudriette did not appear in discharge of such recognizance, but made default therein and failed to appear or respond to the call of the court, and that after having been called, and failing to appear or respond to such call, the recognizance was duly declared forfeited to the State of Indiana, and that such forfeiture, taken as aforesaid, was recorded on the back of said bond in the words and figures following, to wit:

"State of Indiana, City of Vincennes, ss.:

"I, John Wilhelm, do hereby certify that the within named Charles Soudriette did not appear in discharge of his recognizance, and abide the judgment of the court, as was required by the terms of the within bond; thereupon said Soudriette was thrice called, but came not, and wholly defaulted. Thereupon his recognizance was declared forfeited. August 22d, 1885.

(Signed) John Wilhelm, Mayor."

And the State further said that there was a clerical error in the making of said bond, in this, that from such bond as drawn, it appeared that the appellees were bound unto the city of Vincennes to answer the charge of having violated a city ordinance; that such bond should have read, "bound unto the State of Indiana, to answer the charge of having obtained goods under false pretences," as that was really the charge the appellee Charles H. Soudriette was arrested upon and the charge for which such bond was given for his appearance before said mayor, at said time. "Whereby a right of action has accrued unto the State of Indiana on said bond, and it prays judgment in the sum of one hundred dollars."

From the foregoing summary of the facts stated in the State's complaint in the cause now before us, it is manifest that the question for our decision, as the case is now here presented, may be thus stated: May the State, upon the facts stated and admitted to be true, recover upon the forfeited recognizance, set out in the complaint, notwithstanding the singular and extensive "clerical errors" therein? Under the jeofail provisions of our civil code, we are of opinion that this question must be answered in the affirmative. Appellees' counsel has not seen proper to favor us with any brief or argument in support of the ruling of the circuit court, and we have not been advised, in any mode, of the grounds upon which that learned court based its ruling. Of course, the case under consideration is a civil action, although it is prosecuted by and in the name of the State of Indiana, as the plaintiff therein.

In section 1221, R. S. 1881, which is substantially, and almost literally, a re-enactment of section 790 of the civil code of 1852 (2 R. S. 1876, p. 311), it is provided as follows: "No official bond entered into by any officer, nor any bond, recognizance, or written...