Barkley v. State

15 Kan. 99

• Court: Supreme Court of Kansas
• Decided: July 15, 1875
• Status: Published

Opinion

The opinion of the court was delivered by

Valentine, J.:

1.Petition; how sufficiency to De questioned.

2. "Uncertainty in pleading, how cured.

3.Name of defendant; variance.

4 Default- forrecoguizance. piea mg.

This was an action on a criminal recognizance. And while some of the proceedings on the part of plaintiff below (defendant in error) may not have been technically as exact as they might have been, yet we think no substantial error was committed by the court below.

It is objected that the petition below did not state facts sufficient to constitute a cause of action. This objection was made for the first time in the court below by objecting to the introduction of any evidence under it. Such an objection made at such a time and in such manner .g neyer favore(J foy courts. (Mitchell v. Mihoan, 11 Kas. 617, 625, 626, and cases there cited.) Justice would be better subserved if the question of the sufficiency of the petition were always raised and determined before the commencement of the trial. Hence, where the question of the sufficiency of a petition is raised for the first time, and only by an objection to the introduction of any evidence under it, courts will always construe the allegations of the petition very liberally, so as to sustain the petition if it can be sustained; and if anything should intervene between the filing of the petition, and the final rendering of the judgment, which could by a fair and reasonable intendment be construed to cure the defective allegations of the petition, the courts will hold that such defective allegations are thereby cured. (See same case as above, and other cases there cited, and Irwin v. Paulett, 1 Kas. 418.) The only objection urged against the petition in this case is, that it does not in terms' allege that said recognizance was ever filed in the district court as required by law. (See Criminal Code, §§ 41, 64,144.) And therefore it is claimed that the petition does not show that said supposed recognizance ever became a record, or that it ever in fact became a recognizance; for, as is claimed, a recognizance is merely “an obligation of record.” Morrow v. The State, 5 Kas. 566; Gay v. The State, 7 Kas. 394, 402; The State v. Weatherwax, 12 Kas. 463, 465.

The instrument sued on in this case was an obligation of the defendants below, in the form of a criminal recognizance, taken by a justice of the peace on a preliminary examination in a criminal proceeding requiring the appearance of the defendant Geo. W. Barkley at the next term of the district court to be held in Bourbon county, to answer to the charge of embezzlement. The petition designates this instrument as a “recognizance.” It, was in form a recognizance. And the petition further alleged that the said Barkley and his surety, the other defendant, George Patterson, were at said next term of the district court three times solemnly called, but came not, and made default, and thereby forfeited .their “recognizance.” Now according to the theory of the plaintiffs in error, (defendants below,) they could not have made default, or forfeited their “ recognizance,” if the instrument sued on had not at the time of the supposed default and forfeiture been filed in the district court, for in that case it would not have been a “record,” and therefore would not have been >a recognizance, and therefore could not have been forfeited as such. But the petition does allege that the defendants did make “default,” and did “forfeit their recognizance;” and therefore, if the theory of the defendants below is correct, the petition does allege inferentially and by implication that the instrument sued on had been filed in the district court, and had become a record, and a recognizance. This allegation would not of course have been considered sufficient if it had been attacked by a demurrer, of motion to make more definite and certain. But it'is certainly sufficient "under the circumstances of this case. It was cured by the evidence subsequently introduced, and by the findings and judgment of the court below. The evidence clearly shows that, not only the recognizance, but all the other papers connected with the preliminary examination, were duly filed in the district court before said default or forfeiture had occurred, and long before this suit was brought. It is doubtful however whether the theory of the defendants below is correct, and more doubtful whether any allegation of the filing of the recognizance is required. (Crim. Code, § 154.) But even if correct, and the allegation necessary, still the defective allegations of the petition were cured by the evidence, findings and judgment. The execution of the recognizance was not put in issue by any pleading verified by an affidavit, and therefore under § 108 of the civil code the execution of the recognizance must be taken as admitted. (Ingram v. The State, 10 Kas. 630, 636.) Whether the execution of the recognizance means, merely the execution of the same before the magistrate, or whether it means that and also the filing of the same in the district court, we need not now determine. Probably under the pleadings in this case judgment should have been rendered' for the plaintiff on the pleadings.

It is claimed that there was a substantial variance in the proof and the allegations of the petition. The alleged variance is, that the petition alleges that “G. W. Barkley” made default in not complying with the condition of . . . r . , . his recognizance, while the proof shows that it was “ George Barkley ” who made the default. Now the petition alleges that “G. W. Barkley” as principal, and George Patterson as surety, executed the recognizance sued on, and that they made the default, the petition giving a copy of the recognizance in full. The record of the subsequent proceedings in this case shows that the defendant Barkley made his appearance in this case both under the name of “G. W. Barkley” and “George W. Barkley;” and the record of the default and forfeiture shows that “George Barkley” as principal, and George Patterson as surety, made the default. ■ And the recognizance is so described in said last-mentioned record, (the date, the amount, the name of the justice before whom the recognizance was taken, the parties thereto, and other matters descriptive thereof being given,) that there can be no possible doubt but that the persons who executed the recognizance, and who are now sued thereon, made the default charged against them. And all this may properly be shown, although slight differences in giving the name of some of the parties may occur in the different records. (Gay v. The State, 7 Kas. 394; O’Brien v. The People, 41 Ill. 456.) .

But there are other reasons why the findings and judgment of the court below upon this particular matter should not be disturbed. The plaintiff alleged in its petition below that defendants made said default. The defendant Patterson did not in any manner deny this, xjp0n this point he simply alleged in his answer that there was no record of the default or forfeiture. Such an answer states no defense. It is not material in a suit upon a forfeited recognizance that it be shown that the default or forfeiture was ever in fact entered of record.. (Crim. Code, §154; Ingram v. The State, 10 Kas. 630.) The only material question in such a case is, whether a default was actually made or not. Of course, a record of every default should be made. (Crim. Code, § 152.) But so also should a record of every compliance with the recognizance be made. (Crim. Code, §138.) But still the mere failure on the part of the clerk to make such record, would hardly interfere with the substantial rights of any party. The defendant Barkley was in default in this case for want of an answer to the plaintiff’s petition. He therefore “asked and obtained leave of the court to file a similar answer to that filed for the defendant Patterson, and the same is [was] filed accordingly.” The remarks already made with reference to the answer of Patterson will equally apply to this answer of Barkley, for the two answers are precisely alike. But afterward Barkley filed another answer. He filed his second answer without any leave of the court, or consent of the plaintiff. It contained a general denial of all the allegations of the plaintiff’s petition. Whether the court below took any notice of this second answer or not, we cannot tell. Probably the court did not.

» . Effect or record, mony not aii preseived.

certificate of tnai judge.

But there is still another obstacle in the way of the plaintiff in error, which obstacle will not only reach to the question now under consideration, but will also reach to every question which we may hereafter discuss in this case. It J is not shown in any proper way that all the evi<jence that was submitted to the court below has been brought to this court. The record brought to this court is a transcript of the record of the proceedings of the court below. It is not a “case made” for the supreme court, nor a copy of any such “ case made.” And hence we can consider nothing therein contained except what properly belonged to or was made a part of the record of the proceedings of the court below. Now there is nothing in the record of the proceedings of the court below that shows that all the evidence has been preserved, or brought to this court. In the record brought to this court, with the other papers attached to the petition in error, we have the following: first, the proceedings which go into the record without any special order of the court; second, a bill of exceptions, ordered to be made a part of the record, and signed by the judge who tried the cause; third, then comes a certificate of the judge who tried the cause, who was merely a judge pro tem., not embodied in a bill of exceptions, not ordered to be made a part 0f the record, not a journal entry, not any proceeding of the court, as a court, which certifies “ that said bill of exceptions contains and refers to all the evidence offered on the trial of said action;” fourth, then comes the usual certificate of the clerk appended to such records. Such a certificate as the one signed by the judge is unknown to any practice of the law that we are acquainted with. (Bartlett v. Feeney, 11 Kas. 594.) And there is nothing except said certificate that pretends to show how much of the evidence was brought to this court. Now for the purpose of promoting justice, all courts are generally very liberal in construing irregular modes of getting cases into court, or irregular modes of presenting questions for the consideration of the • court. But we are not aware that any court has ever felt itself bound to resort to far-fetched presumptions for the purpose of defeating justice. Therefore, where parties are attempting to defeat justice by mere technicalities, they ought to be careful to have the record of the proceedings made so technically exact that everything favorable to themselves should be affirmatively shown.

Findings of court

The special findings of the court we think are sufficient. It is true, the court might have entered into greater detail in stating the facts found, if it had chosen to do so. But as the plaintiffs in error did not point out any specific matters upon which they desired further or more definite findings to be made, and did not express any desire that the court should go into any greater detail in its findings, we think the findings as they were made are sufficient. Besides, as we have before said, it is probable that judgment should have been rendered for the plaintiff on the pleadings; but as the pleadings of both the plaintiff and the defendants were defective, we do not now wish to decide that question. The evidence was amply sufficient to sustain the findings and judgment of the court below. The recitals of the recognizance, which were admissions on the part of the defendants, were of themselves sufficient evidence, prima facie, to show that -Barkley was in legal custody when the recognizance was entered into.

The judgment of the court below is affirmed.

All the Justices concurring.