People v. Wilgus

5 Denio 58

• Court: New York Supreme Court
• Decided: October 15, 1847
• Status: Published

Opinion

By the Court, McKissock, J.

It is contended that the bond in this case was void for haying a condition, beyond that prescribed by the statute, and that therefore the judge should have nonsuited the plaintiff. But the defendant made no objection on the trial to the form of the bond, nor did he ask that the plaintiff’ should be nonsuited. The whole inquiry seems to have been whether the defendant Wilgus appeared before the commissioner according to law. The circuit judge decided that he did not, and that therefore the plaintiff was entitled to a verdict. The defendant’s counsel should have applied for a nonsuit on that ground if he wished to raise the point now suggested. A party cannot put his whole defence at the trial on a particular point and afterwards applj for a new trialupon some radical objection to the recovery not before mentioned or alluded to. '

Besides, the objection admits that the plaintiff had proved his whole case as stated in the declaration. If so, he was entitled to a verdict, whatever may be thought of the present objection. The question could only be raised by a demurrer or a motion in arrest of judgment.

The main question then arises whether the defendant Wilgus appeared before the commissioner according to the legal import of the term as it is used in the condition of the bond. It is true that he was in person in the same room with the commissioner at the time and place mentioned in the bond. But it is equally clear that he did not answer when called by that officer, and that his default was then entered. The word appearance has in law a technical meaning altogether different and beyond the idea of personal presence. Thus, a party appears by filing special or common bail, or by entering his appearance in the minutes of the court. In criminal cases not of the grade of felony, the party though not in court appears by his counsel, and so the clerk may in those cases enter his appearance. If before the alteration of the practice in this court by statute, the plaintiff had refused to answer on the coming in of a verdict, he was pronounced not to have appeared, though he were in court by his own bodily presence and that of his counsel. So in a court of a justice of the peace, if a plaintiff on the day appointed for trial should visibly appear before the magistrate, but refuse to answer or proceed in the cause, the justice would have a right to enter judgment against him in favor of the defendant on the express ground that he had not appeared. And in a prosecution for the breach of a recognizance, for not appearing to answer in a criminal court, all that it is necessary to assert in pleading, and to prove is, that the party was called in court and did not answer, and that his default was entered. In such a case he would not be permitted to prove as a defence that though he did not answer yet that he was at the time present in court and visible to all. Now if this be so in a case where the court possesses the power to arrest the accused on the spot, if he be present, or of sending a warrant for him if he disappear, much more did the recognizance in this case require an appearance beyond the mere corporal presence of the defendant. The proceeding is one authorized by statute, and the commissioner has no power over the person arrested but what is specially conferred. When therefore he has granted an adjournment and taken security for the defendant’s appearance, he is functus officio till the defendant makes a technical appearance by rendering himself before him to answer the proceedings in the matter. It is optional with the defendant whether he will so appear or not. And he is as capable of making the election not to appear, while in the same room with the officer, as he would be at any other place. This choice he did make, and refused to appear before the commissioner according to the exigence of the recognizance. The case of Spencer v. Hilton, (10 Wend. 608,) cited by the defendants’ counsel, by no means shows that in the case at bar the officer had the power to have committed the defendant. The court in that case did say that the officer had the power to commit the defendant; but there he had actually appeared and submitted himself to the jurisdiction of the officer, but insisted that he was not bound to go on and controvert the charges and facts in the complainant’s affidavits till he offered further proof of them. Of this opinion was the officer, who dismissed him, as the plaintiff would not proceed first.

But it is said the judge should have left the question of appearance to the jury. There was no fact to be left to the jury. There was no pretence that there was an adjournment, by the officer, and the want of such an appearance as I have considered necessary,, was shown by the concurrent testimony of all the witnesses. Ther motion for a new trial must be denied.

New trial denied.