Wright v. Burbee

• Decision Date: 04 November 1941
• Citation: Wright v. Burbee, 112 Vt. 197, 22 A.2d 494 (Vt. 1941)
• Parties: ARTHUR P. WRIGHT v. ARTHUR G. BURBEE
• Court: Vermont Supreme Court

22 A.2d 494

112 Vt. 197

ARTHUR P. WRIGHT v. ARTHUR G. BURBEE

Supreme Court of Vermont

November 4, 1941

October Term, 1941.

Surrender of Bail.---1. Court's Duty to Find Facts, P. L 2069.---2. Municipal Court's Duty to Find Same as County Court, P. L. 1405.---3. Motion for Judgment at Close of Court Case Inopportune.---4. Premature Motion Properly Considered Later.---5. Bail on Mesne Process, P. L. 2163.---6. Discharge of Bail on Mesne Process, P. L. 2158.---7. Surrendered Principal Should be Jailed Unless Further Security, P. L 2159---8. Attendance to Defend Not Discharge of Bail.---9. Exoneretur Necessary to Discharge of Bail.---10. Discharge of Bail as Matter of Right.---11. Exoneretur with Qualifications Must be Treated as Record of Facts Therein Recited.---12. Principal May Surrender Bail by Attorney.---13. Attorney May Act for Principal and Bail.---14. Failure to Order Principal Into Custody Does Not Impair Surrender.---15. Bail Not Party to Principal Action.

1. When controversial questions of fact are presented by the pleadings in a case tried by the court, it is the duty of the court to find and state the facts, P. L. 2069.

2. The duty of a county court to find and state facts in cases tried by it is imposed upon a municipal court by P. L. 1405.

3. A motion for judgment at the close of evidence in a case tried by the court, before findings of fact are made, is inopportune.

4. Although a motion may be made prematurely, if consideration and action thereon is deferred until the same would be in order, the action of the court thereon may raise questions properly reviewable.

5. Statutory bail on mesne process combines special bail, or bail below, for the appearance of the principal in court upon the return day and bail to the action, or bail above, for the payment of the judgment debt and costs or surrender of the principal into custody, P. L. 2163.

6. P L. 2158 allowing discharge of a surety on mesne process by delivery of his principal into court is merely declaratory of the common law.

7. Upon delivery of a principal into court in discharge of bail on mesne process, it is the duty of the court to order him committed to jail unless he procures sufficient surety for his appearance, P. L. 2159.

8. The mere attendance of the principal in court to defend the action is not sufficient to discharge bail.

9. To discharge bail there must be a formal surrender by the bail of the principal into the custody of the court and the discharge is not complete and actual until an exoneretur has been entered on the record.

10. A surety upon bail is entitled to deliver his principal into court upon return day as a matter of right.

11. Where bail presented his principal into court on the return day and moved for his discharge and the court directed the entry of exoneretur with the qualification that it should only apply to the attendance of the principal on return day the qualification of the exoneretur must be disregarded and the entry treated as an unconditional discharge of the bail.

12. Delivery of principal may properly be made by the bail through his attorney.

13. An attorney for the principal may also act on behalf of the bail in delivering the principal into court in discharge of bail.

14. The effectiveness of the surrender of a principal by his bail is not impaired by the failure of the court to order the principal into custody.

15. Bail is not a party to an action against his principal entitled to take exceptions to rulings of the court.

SCIRE FACIAS. Plea, surrender of principal into court and discharge as bail and other matter. Heard by Bellows Falls Municipal Court, Albert T. Bolles, Judge. Judgment for the plaintiff. The opinion states the case.

Judgment reversed and judgment for the defendant to recover the costs.

Gibson & Gibson (A. Luke J. Crispe on brief) for defendant.

Edwards & Bigelow for plaintiff.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

MOULTON

This is a writ of scire facias against bail on mesne process, wherein it is alleged that the plaintiff brought an action in tort against one Stuart Burbee, the writ being issued as a capias upon which he was arrested, and the defendant herein became surety for Stuart Burbee's appearance by endorsing his name on the back of the writ as bail; that the cause came on for trial by jury resulting in a verdict for the plaintiff, and the court adjudged that the cause of action arose from the wilful, malicious and negligent act of Stuart Burbee, as appears of record; that a certified execution issued which was placed in the hands of the sheriff, who made timely return of non est inventus.

The defendant answered the writ by pleading in bar a surrender of Stuart Burbee into court, and his discharge as bail; and, further, that at the time of the return of non est inventus, Stuart Burbee was insane and confined in an institution for the insane.

Issue was joined upon the plea, and after hearing and a finding of facts made and filed by the court, judgment on the writ was entered for the plaintiff. The cause is here upon the defendant's exceptions.

At the close of all the evidence the defendant moved the dismissal of the writ and for judgment in his favor. The pleadings presented controverted questions of fact, upon which evidence had been introduced by both parties, and it was therefore the duty of the court to find and state the facts. P. L. 2069. Although this statute applies in terms to the County Court the same duty is imposed upon a municipal court by virtue of P. L. 1405. Falzarano v. Demasso, 98 Vt. 209, 214, 126 A. 394. The motion was inopportune, since, at the time it was made, the court had not made the required finding of facts. Raithel et ux. v. Hall et al., 99 Vt. 65, 69, 70, 130 A. 749; Roberge v. Town of Troy, 105 Vt. 134, 136, 163 A. 770. Nevertheless the record shows that the court deferred a ruling thereon until after the facts had been found, and so we take it that the point was treated as having been seasonably raised, and the exception to the denial of the motion is before us.

With regard to the claim that the bail had been discharged the court made the following finding: "At the opening of the original trial the attorney for the defendant Stuart Burbee addressed the court and stated that as Attorney for the bail, Arthur G. Burbee, he presented the defendant in court and requested that the bail be discharged. The court declined to accept this as a compliance with the statute and directed the record to show that the defendant was present and that the bail was discharged insofar as his attendance was concerned but did not accept the offer of the defendant's attorney, acting both as attorney for the defendant and the surety, as such a surrender of the defendant as is contemplated by the statute."

By P. L. 2163 it is provided that "When a person endorses his name as bail on mesne process, he shall be holden to satisfy the judgment finally rendered thereon, if the plaintiff causes the execution to be put into the hands of an officer authorized by law to levy and serve the same within thirty days from the date on which he is first entitled by law to such execution, and causes a legal return of non est inventus to be made thereon within sixty days from such date." This statute in effect combines the two forms of bail on mesne process known to the common law--special bail put in to the sheriff upon the arrest or bail below, for the appearance of the principal in court upon the return day of the writ, and bail to the action, or bail above put in to the court on the return day wherein the undertaking of the sureties in the event of judgment against the principal is either to pay the judgment debt and costs or to surrender him into custody. 3 Blackstone Comm. (Sharswood's Ed.) pp. 290, 291; Bouvier, Law Dict. (Rawles' 3rd. Revision) title, "Bail."

By P L. 2158 "A surety...