State v. Brady

22 N.W. 154, 62 Wis. 129, 1885 Wisc. LEXIS 127

• Court: Wisconsin Supreme Court
• Decided: January 13, 1885
• Status: Published

Opinion

LyoN, J.

Had an action been brought against the appellants on their recognizance, and judgment recovered against them therein, there can be no doubt that they could bring the case here for review, by appeal. Although the action would arise out of a criminal prosecution and conviction, it would be an action on the contract or obligation contained in the recognizance. Of course, the judgment in such an action.is appealable.

Ye think the essential nature and incidents of a judgment summarily rendered against the sureties under sec. 4711, R. S., without bringing a new action, is the same. True, in form therais but one judgment against the defendant who was convicted of the misdemeanor and his sureties — the appellants. But in substance and legal effect there are two judgments: one against the accused, imposing a penalty for a crime, upon which he may be imprisoned; the other against his sureties, sounding in contract, and upon which no execution can go against the bodies of the debtors.

No doubt the convicted party would be, compelled to resort to his writ of error or certiorari, in order to obtain a review by this court of the judgment against him; but we are clearly of the opinion that the sureties may obtain such review of the judgment against them by appeal. On this motion we decide no other point in the case.

By the Court.— The motion to dismiss the appeal is denied.

The appeal was dismissed by stipulation March 31, 1885.