Summary
In State v. Kelly et al., 318 Mo. 1134, l.c. 1141, the court said: "The writ of scire facias is not an original writ by which l itigation is initiated; it only marks a stage in litigation already commenced. It is founded on the record of the court that issues it and must rely on the record of that court for its support."
Summary of this case from State v. WynneOpinion
February 18, 1928.
1. BAIL BOND: Not Filed in Trial Court: Scire Facias. A bail bond must be filed in the court in which the defendant charged with the criminal offense is required to appear, and if not so filed the court has no authority to enforce it by writ of scire facias.
2. ____: ____: Certified Copy. Where the Supreme Court, upon habeas corpus, ordered that defendant be released upon his giving a sufficient bond, fixed the amount thereof, and ordered that it be taken by the judge of the assignment division of the circuit court and when so taken and approved by him that he return it to the division of the court in which the cause was pending for trial, and said bond was taken and approved by said judge, and later approved by the Chief Justice of this court and filed with the clerk of this court, where it has ever since remained, and only a certified copy was sent to the proper division of the circuit court, the said circuit court is not authorized to enforce the original bond or the certified copy by writ of scire facias, because the bond has never been transmitted to the court in which the party bailed is required to appear, as prescribed by the statute (Sec. 3841, R.S. 1919).
3. ____: Certified Copy: Statute. Section 5377, Revised Statutes 1919, and its companion sections contained in the same chapter, do not relate to bail bonds or recognizances taken and filed in criminal proceedings, and do not in any sense undertake to provide for their enforcement. Under them the filing of a certified copy of a bail bond or recognizance in the court in which the defendant stands charged with a crime is not alone sufficient to authorize a judgment by scire facias against the sureties for a breach of the bond or recognizance.
4. ____: Scire Facias: Ancillary. A writ of scire facias is not an original writ by which litigation can be initiated; it only marks a stage in the litigation already begun. It is founded on the record of the court issuing it, and in order that it may be used as the basis of a judgment against the parties to a bail bond or recognizance, the bond or recognizance itself, and not a certified copy thereof, must be filed in the court in which the criminal action against the principal is pending, as required by the statute (Sec. 3841, R.S. 1919), and thereby be made to become a part of the record of such court; for only the court having possession of the record on which the writ of scire facias is founded can issue the writ.
Corpus Juris-Cyc. References: Bail, 6 C.J., Section 265, p. 1013, n. 43; Section 341, p. 1060, n. 70. Scire Facias, 35 Cyc., p. 1148, n. 1; p. 1151, n. 34.
Appeal from Jackson Circuit Court. — Hon. Allen C. Southern, Judge.
REVERSED.
James M. Rader, Frank D. Rader and Charles S. Walden for appellant.
(1) Under the pleadings and the whole record the Circuit Court of Jackson County did not have jurisdiction to hear and try the scire facias proceedings, and to render judgment upon the bond in question against this surety. After the bond was filed it was not returned forthwith by the Clerk of the Supreme Court to the Clerk of the Jackson County Circuit Court, as required by Secs. 3922 and 3841, R.S. 1919, and in fact was never returned or delivered to the clerk of said circuit court and was never in the custody or possession of said Clerk of the Circuit Court of Jackson County at any time. A certified copy of said bond was filed in said circuit court, but the bond itself was not in the custody or possession of said circuit court at the time of the rendition of judgment against said surety. The bond not being certified and returned and filed as required by law, the court was without jurisdiction to try said cause or to render judgment in same against surety. State v. Pratt, 148 Mo. 402; Pullman Car Co. v. Washburn, 66 F. 790; 35 Cyc. 1151, and note 34. The bond was received and approved by the Supreme Court, and the defendant ordered released upon it by the Supreme Court. The bond was not given in compliance with the court's mandate, which required the defendant to give three separate and distinct bonds in cases numbered C-627, C-629 and C-1828 in three separate amounts to-wit, five thousand dollars in C-627, five thousand in C-629 and ten thousand in C-1828, said bonds to be taken by the judge of the assignment division of the Circuit Court of Jackson County, and when taken and approved by him, to be returned to the division of the circuit court, in which said causes are pending for trial. Said bond purporting to cover one case of State of Missouri v. Charles P. Kelley, and conditioned upon the appearance of the defendant to answer one charge, and to appear from time to time should said cause be continued, and being in the penal sum of twenty thousand dollars, was obviously not taken in compliance with the court's mandate. The court's order approving the bond and ordering the release of defendant Kelley in cases C-627, C-629 and C-1828 now pending in the Circuit Court of Jackson County, does not change or alter the terms of the bond now the obligation of the surety, as shown by the bond itself. The bond taken not being in compliance with any statute, or order of court, was void or at best a common-law bond, and could not be enforced by a proceeding of scire facias for a forfeiture under the statute. State v. Simmons, 225 S.W. 958; Secs. 3916, 3918, R.S. 1919; State v. Charles, 207 Mo. 45; Sec. 1876 to Sec. 1946, R.S. 1919. There was no order of any court changing the amounts of said bond to the sum of $20,000, and the law requires the taking separately of bonds in separate amounts. Secs. 3916 to 3929 including Sec. 3813 and Sec. 2547, R.S. 1919. The taking of the bond in question, was not in compliance with the law and was not a statutory bond. 6 C.J. 993, par. 229, and footnotes; State ex rel. v. Frazier, 165 Mo. 242; State v. Crosswhite, 195 Mo. 1; State v. Schmidt, 200 S.W. 1071; State v. Owen, 206 Mo. 578; State v. Woodward, 159 Mo. 680; State v. Pratt, 148 Mo. 402. (2) The scire facias and the whole record and proceedings wholly failed to state or constitute a cause of action against the surety and show upon their face that the court had no legal right to render judgment against the surety. The records in the case show that the court forfeited the bond in question in three cases, to-wit, C-627, C-629, and C-1828, when in fact no bonds were given in any of said cases, and rendered final judgment in all of said cases against the surety in specified amounts, to-wit, $5000 in C-627, $5000 in C-629 and $10,000 in C-1828; that only one bond was given which by its terms purports to cover only one case and which particular case could not be determined from the bond itself. This forfeiture of the one bond and making it applicable to the three cases pending in said circuit court was wholly without authority and the judgments thereon were void and of no effect. (3) The court erred in admitting over the objections and exceptions of defendant the certified copy of the bond executed upon May 20, 1925, and the record of the filing of same in the Circuit Court of Jackson County. The bond executed by surety and upon which this action is based was filed in and approved by the Supreme Court, and did not cover or purport to cover cases C-627, C-629 and C-1828, and were inadmissible, irrelevant and immaterial. The burden was upon the State to show and prove separate bonds in each individual case and this requirement was not met with by the introduction of a bond which did not on its face or from its contents show that said single bond was given in the above-mentioned three cases. 6 C.J. 992, par. 226, 229; Michael Reese v. United States, 9 Wall. 13.
North T. Gentry, Attorney-General, and H.D. Harrawood, Special Assistant Attorney-General, for respondent.
(1) The Circuit Court of Jackson County did have jurisdiction to hear and try the scire facias proceedings and to return judgment upon the bond in question against this surety. A certified copy of said bond and recognizance was filed in the Jackson County Circuit Court. The indictments upon which the charges against principal Kelly were based, were all of record in the office of the Clerk of the Circuit Court at the time when the scire facias proceedings were instituted and offered in evidence at the hearing. " Scire facias is deemed a judicial writ, and founded on some matter of record, as judgments, recognizances, and letters-patent, on which it lies to enforce the execution of them or to vacate or set them aside." State v. Wilson, 265 Mo. 1; State v. Randolph, 22 Mo. 474; 8 Bac. Abr. 598; Pullman Car Co. v. Washburn, 66 F. 792; State v. Abel, 170 Mo. 59. The record upon which the writ issues is the evidence upon which plaintiff must rely to prove the case. Hollister v. United States, 145 F. 779; Winder v. Caldwell, 14 L.Ed. 487; United States v. Payne, 147 U.S. 687; Hunt v. United States, 166 U.S. 424. (2) The bond or recognizance may cover more than one offense. Where an accused is in custody charged with a criminal offense a failure to set out the particular offense charged in the bail bond or recognizance does not invalidate it. State v. Whitecotton, 63 Mo. App. 8; Hardesty v. State, 5 Kan. App. 780. Where there are several indictments the fact that the recognizance does not specify to which indictment it refers will not effect its validity. State v. Fuller, 128 Ala. 45; People v. Ct. Oyer T., 7 Hun (N.Y.) 114. The condition "and not depart without leave of court" eliminates the necessity of a specific charge in the bond or recognizance. United States v. Atwill, 24 Fed. Cases, No. 14475, p. 887. (3) The court will look at the entire record and if it appears that the recognizance was duly executed and judgment entered, the proceeding will be sustained. State v. Adanks, 256 S.W. 768. Furthermore, the voluntary obligation entered into by the surety should be held against him. State v. Simmons, 225 S.W. 958. Especially is this true where the surety voluntarily signs a bond or recognizance and accepts a consideration for so doing. He cannot repudiate such bond or recognizance. Daniels v. Tearney, 102 U.S. 421.
This is a proceeding by scire facias to enforce the forfeiture of alleged recognizances or bail bonds, in three robbery cases in the Circuit Court of Jackson County. The State dismissed as to the principal, Charles P. Kelly, due to failure in the service of process, and final judgment was rendered against the surety, James A. Johnson, for $10,000 in one case, and for $5,000 in each of the other cases, or for $20,000 in all. The trial court overruled his motions for a new trial and in arrest of judgment and he appealed.
The record shows that Kelly was indicted on three separate charges of robbery in the first degree, two of the indictments being returned on May 8, 1923, and the third on February 28, 1924. The three cases were numbered C-627, C-629 and C-1828. Originally, he was released on recognizances in the sum of $5000 in each case. Thereafter, he was surrendered in open court by one of his sureties, and subsequent difficulties in the matter of bail resulted in a habeas corpus proceeding in this court on October 14, 1924. The mandate of this court in that proceeding ordered Kelly's release from custody upon the following condition:
" Upon his giving a good and sufficient bond in each of said causes for his appearance in the said Circuit Court of Jackson County to answer for trial upon each of the said charges, and not depart the court without leave; that in said cause No. C-1828 the petitioner's bond be, and is hereby, fixed at the sum of ten thousand dollars; in cause No. C-627, at five thousand dollars, and in cause No. C-629 at five thousand dollars; that the said bonds and each of them, be taken by Hon. O.A. Lucas, Judge of the Assignment Division of the said Circuit Court of Jackson County, and when so taken and approved by him, it is ordered that he return the said bonds to the division of the said circuit court in which the said causes are pending for trial." (Italics ours.)
On May 20, 1925, Judge O.A. Lucas of the Circuit Court of Jackson County approved a certain recognizance or bail bond in the sum of $20,000, signed by Charles P. Kelly, as principal, and James A. Johnson, as surety. On the following day, May 21, 1925, the Chief Justice of this court, acting for the court, approved this recognizance or bail bond and, by order of this court, Kelly was released under the terms thereof. Upon its approval by this court said recognizance or bail bond was filed in the office of the clerk of this court, where it has ever since remained. On December 17, 1925, a certified copy of the same was filed in the office of the Clerk of the Circuit Court of Jackson County. On December 28, 1925, when the three cases mentioned (No. C-627, No. C-629 and No. C-1828) were called for trial and Kelly failed to appear, forfeitures of alleged recognizances or bail bonds in said cases were declared, in the sum of $10,000 in case No. C-1828, in the sum of $5000 in case No. C-627, and in the sum of $5000 in case No. C-629.
The certified copy of the recognizance or bail bond, upon which this proceeding and the judgment herein is based, appears in the following form:
In the Supreme Court of the State of Missouri. At Jefferson City, Missouri.
State of Missouri, Plaintiff, v. No. C__ Charles P. Kelly, Defendant.Bond and Recognizance
Know All Men By These Presents:
That the undersigned, Charles P. Kelly, as principal, and James A. Johnson, as surety, acknowledge themselves to owe and be indebted unto the State of Missouri, in the penal sum of Twenty Thousand Dollars ($20,000).
The condition of the bond is that said defendant, Charles P. Kelly, shall appear in the Circuit Court of Jackson County, Missouri, Criminal Division No. A, on the first day of the next regular term, the same being the 14th day of September, 1925, and from day to day during said term and from term to term thereafter of said court, should said cause be continued, then and there to answer thereon unto the State of Missouri upon the charges herein and not depart the court without leave, then this bond to be void, otherwise to remain in full force and effect. [Boldface ours.]
Done this 20th day of May, 1925.
Charles P. Kelly, Principal. James A. Johnson, Surety. Approved by me this 20th day of May, 1925. O.A. Lucas, Judge of the Circuit Court, Division No. 2, Jackson County, Missouri.
May 21st, 1925 — The Foregoing bond is approved by the Supreme Court. Defendant is released under this bond.W.W. Graves, Chief Justice.
State of Missouri — Sct.,
I, J.D. Allen, Clerk of the Supreme Court of the State of Missouri, hereby certify that the above and foregoing is a full, true and complete copy of the bond in the case of State of Missouri versus Charles P. Kelly as fully as the same appears and remains on file in my office.
In Testimony Whereof I hereunto set my hand and affix the seal of the Supreme Court of Missouri, at my office in the City of Jefferson, State aforesaid, this 16th day of December, 1926. (Seal)
J.D. Allen, Clerk of the Supreme Court of Missouri.
The writ of scire facias shows on its face that the recognizance or bail bond in controversy was taken by this court and does not allege that it was ever filed in the circuit court. Moreover, as above indicated, the record of the circuit court discloses that it was filed in this court and has ever since remained on file in this court. Thus, on the record proper, we are confronted with the question of the circuit court's jurisdiction to declare a forfeiture of this recognizance or bail bond and to issue this writ and to hear and determine this proceeding.
Section 3841, Revised Statutes 1919, provides that:
"Whenever any prisoner shall be let to bail by any court, it shall be the duty of the clerk of the court by which the prisoner was bailed immediately to transmit the recognizance taken by such court to the clerk of the court in which the party bailed is required to appear." (Italics ours.)
Sections 3842 and 3922 make the same provision for the filing of a recognizance or a bail bond taken by the sheriff or other officer out of court.
In the early cases of State v. Zwifle, 22 Mo. 467, and State v. Randolph, 22 Mo. 474, this court held that a recognizance must be filed in the court where the accused is required to appear in order to sustain a writ of scire facias based thereon. LEONARD, J., speaking for the court, in both of these cases, said: "Of course, the party is bound as soon as the obligation is entered into in the form prescribed; but if it be taken by an officer, or by another court, it must be certified and filed in the court, where the party is bound to appear, in order to render it complete and make it effectual." (Italics ours.)
These cases were cited with unqualified approval in the later case of State v. Pratt, 148 Mo. l.c. 407, 50 S.W. l.c. 115, wherein Judge SHERWOOD referred to this positive requirement of the statute in the following manner:
"Now, in the case at bar, there was no certificate at all, nor was the bond even so much as returned to the clerk of the circuit court. In such circumstances, although the circuit court had jurisdiction over that class of actions, to-wit, a general jurisdiction, yet the bond or recognizance never having been filed with the clerk of that court, that jurisdiction never attached in this particular instance, and consequently the judgment of forfeiture was a proceeding coram non judice." (Italics ours.)
This court has uniformly held that, in order to fully comply with the statute, a recognizance or bond must be filed in the court where the defendant is bound to appear, and that, unless this is done, such court has no authority to enforce the same by a writ of scire facias. [State ex rel. v. Lay, 128 Mo. l.c. 615, 29 S.W. l.c. 1000; State v. Austin, 141 Mo. l.c. 487, 43 S.W. l.c. 167; State v. Abel, 170 Mo. l.c. 64, 70 S.W. l.c. 488.]
In the more recent case of State v. Wilson, 265 Mo. 1, 175 S.W. 603, the distinction between a recognizance and a bail bond and the differences in the steps necessary to the enforcement of each are discussed in a very thorough and exhaustive opinion by WALKER, J. And, while the Wilson case overruled certain holdings in the Pratt case, supra, as to the taking and execution of a bail bond out of court, it did not alter the rule as to the filing of the same. On the contrary, the opinion in the Wilson case expressly recognized this rule by use of the following language:
"The instrument being in the nature of a bail bond and not a recognizance, the endorsements thereon show that after it was taken and approved by the probate judge it was filed in the office of the circuit clerk, where the criminal case against the principal was pending. Being in other respects in compliance with the law, this was all that was necessary to render it effective and binding upon the parties thereto." [265 Mo. l.c. 21, 175 S.W. l.c. 608.] (Italics ours.)
The learned Attorney-General contends that, under the provisions of Section 5377, Revised Statutes 1919, the filing of the certified copy of this recognizance or bail bond in the circuit court is sufficient to sustain this proceeding and the judgment rendered herein. We find nothing in support of this contention in the statute referred to Section 5377 merely authorizes the use of certified copies of the bonds of certain administrative officers, in lieu of the originals, as evidence of the making and execution of such bonds. That section and its companion sections of the statutes, contained in the same chapter, do not relate to recognizances or bail bonds taken and filed in criminal prosecutions and do not, in any sense, undertake to provide for their enforcement.
The writ of scire facias is not an original writ by which litigation can be initiated; it only marks a stage in litigation already commenced. It is founded on the record of the court that issues it and must rely on the record of that court for its support. As to its use in a proceeding of this character, Corpus Juris says:
"As a general rule, in order that a bail bond or a recognizance may become an obligation of record, on which a scire facias may be had or a forfeiture declared, it must be filed in, or made a record of, the court to which it is returnable. It does not become a court record by its mere execution, but must be properly filed and recorded to become such." [6 C.J. 1013.]
In discussing scire facias proceedings in general, Cyc. makes the following statement:
"Since the writ of scire facias is one which pertains to all courts of record, all courts of record, unless prohibited, have the power to issue it. But a scire facias can only issue from the court having possession of the record on which it is founded; the jurisdiction is determined by the record without regard to the residence of the parties, or the sum in dispute." [35 Cyc. 1151.]
Section 3927, Revised Statutes 1919, provides that when a recognizance or bail bond is forfeited "the same shall be proceeded upon by scire facias to final judgment and execution thereon." This procedure, of course, is based on the assumption that the recognizance or bail bond has been filed in the court where the party charged is pledged to appear, as provided by Sections 3841, 3842 and 3922, and there preserved for the action of that court thereon. The recognizance or bail bond here involved was not filed in or made a record of the Circuit Court of Jackson County, where the charges against the defendant Kelly were pending, but was filed in and made a record of this court. Under the plain provisions of the statute, the previous rulings of this court and other well-established authority, the trial court was without jurisdiction to declare a forfeiture of this recognizance or bail bond and to enforce such forfeiture by a scire facias proceeding.
The record presents other serious questions to which counsel for appellant have directed our attention, in urging that the judgment rendered below should not be permitted to stand. Among these is, first, the question of whether or not this recognizance or bail bond is sufficient on its face to make it a binding obligation; and, second, the question of whether or not this single obligation in the aggregate sum of $20,000 conforms to the order of this court, which authorized the release of the defendant Kelly in three separate causes, "upon his giving a good and sufficient bond in each of said causes," in the sum of $10,000 in one cause and in the sum of $5000 in each of the other two causes.
In view of the conclusion reached on the question of jurisdiction, it becomes unnecessary to consider these other questions.
The judgment is reversed. Higbee and Davis, CC., concur.
The foregoing opinion by HENWOOD, C., is adopted as the opinion of the court. All of the judges concur.