State v. Foster

2 Iowa 559

• Court: Supreme Court of Iowa
• Decided: June 15, 1856
• Status: Published

Opinion

Wright, C. J.

It is first claimed by the state, that the assumed answer, waived the demurrer filed by defendant. To sustain this position, we should want more evidence than is now before us, that defendants did answer. It would be an unsafe rule to say, that a defendant waives a demurrer by answering, when the only evidence of the existence of such an answer, is, that a plaintiff - demurs and replies to an answer that does not appear to have ever been made or filed. If this was the rule, a plaintiff could, by his own pleading, always make a defendant waive his demurrer.

We have examined the demurrer to the scire facias, however, and conclude that it was properly overruled. This scire facias was sued out under chapter 198 of the Code, and not under chapter 124, as appears to be assumed by the defendants. The latter chapter, refers to civil cases or applications to revive judgments; the former, to forfeited recognizances in criminal cases. The writ, in this case, is not, it is true, the most formal in all its parts — but taken as true (as it is by tbe demurrer), we think, it contains sufficient to entitle tbe state to a judgment. Most of tbe defendant’s argument, is based upon a misconception of wbat is contained in the writ, and a wrong impression of tbe law applicable thereto. It is urged, for instance, .that tbe scire facias does not show that tbe principal in tbe undertaking, was bound to answer at tbe September term, 1854, of the Appanoose District Court. Tbe writ 'does state, however, that tbe person charged was in tbe custody of an officer (tbe proper sheriff), and that be and his surety entered into obligation in open court, conditioned that tbe principal should “ appear at tbe next term of tbe District Court of Appanoose county, Iowa, it being tbe September term of said court, to answer to said charge, &c.,” and then proceeds to state, that at tbe said September term, to wit: on tbe 19th of Sept., 1854, tbe said principal (John Foster) was called, and made default. It also alleges, that tbe recognizance was entered into in tbe Davis county District Court, on the 15th of September, 1854. Taking these allegations together, tbe only fair conclusion is, that tbe person charged was to appear at tbe next term of tbe Appanoose District Court, to wit, September term, 1854, and especially so, when by reference to the law fixing tbe time of that court, of which courts will take judicial notice, tbe next term was to be so held in September.

Again, it must be remembered, that tbe record upon which said scire facias was based, stands in tbe place of a petition, and to that, reference might properly be bad. No petition is necessary in such cases. State v. Leighton et al.

This record is an entirety, and must all be taken together; and when :so considered, must show tbe right of tbe state to have tbe recognizance estreated. State v. Gorley and Cloud, 1 Iowa, 52. But all these things need not appear in tbe scire facias.

Judgment affirmed.