State v. Wells

36 Iowa 238

• Court: Supreme Court of Iowa
• Decided: March 20, 1873
• Status: Published

Opinion

Cole, J.—

The indictment was found in Des Moines county. The bond was executed and the defendants qualified before the clerk of the district court of Jefferson county; but there is no averment or showing that it was ever acknowledged. Regularly and in order to comply with the terms of the statute, so that the prisoner could demand his discharge, the bond should have been executed and acknowledged before the clerk of the district court of Des Moines county, and the sureties should have justified before him. Rev., § 4978. But these are directory and formal matters, and failure to conform to them does not vitiate the bond. The execution of the bond, its acceptance, the discharge of the prisoner thereon, and his failure to appear according to its terms, are the essential matters respecting the bond. The State v. Emily et al., 24 Iowa, 24. These all appear in this case.

The fact that the bond was approved is distinctly averred, and is admitted by the demurrer; such approval need not be indorsed on the bond. It was not necessary that these defendants should have been called and their -default entered; it was enough to call the person indicted. The State v. Gorley, 2 Iowa, 52. An action on the bond is maintainable, even if sevre facias is also allowed. Id.

Affirmed.