Opinion
No. 31404.
December 3, 1934.
1. BASTARDS.
Bastardy proceeding being in nature of criminal proceeding as respects defendant's arrest and binding over to appear before court, his appearance bond required him to appear at next term of court and there remain from day to day and term to term until discharged by law (Code 1930, secs. 179, 1245, 1252, 1253).
2. BASTARDS.
Defendant's appearance bond in bastardy proceeding is discharged only by verdict for him or equivalent thereof, execution of new bond to pay judgment, unless expressly dispensed with by court after trial, or actual delivery of defendant into jail in default of new bond (Code 1930, secs. 179, 191).
3. BASTARDS.
When defendant, under bond for appearance to answer bastardy complaint, absents himself from trial, so that new bond to pay judgment cannot be effectively required, court must enforce appearance bond and apply it towards consummation of its general or ultimate purpose by requiring sureties to pay penalty into court for application on payments awarded bastard's mother by jury (Code 1930, secs. 179, 191).
APPEAL from the Circuit Court of Lee County.
Geo. T. and Chas. S. Mitchell, of Tupelo, for appellant.
There is no provision in our statutes providing that a continuance shall operate as a renewal of the security, and we respectfully submit that when the defendant appeared at the next term of the circuit court of Lee county, he and the sureties on his bond made and fulfilled the requirements of the bond, and that his sureties after that term of court had passed were ipso facto released.
Section 179, Mississippi Code of 1930; 7 C.J. 983, paragraph 101.
Only the circuit court is invested with authority to require the execution of a bond conditioned to satisfy the judgment rendered, and the circuit court has no such authority until after the verdict of the jury has been rendered.
Section 191, Miss. Code of 1930; 7 C.J. 194, para. 102.
The fact that the condition of the bond is broader than the language of the statute does not add to the sureties' liability.
Peoples v. Haggins, 151 New York 570.
Noel Monaghan, of Tupelo, for appellee.
It would appear that the bond of the accused, when bound over, should be payable to the woman, the mother of the child. But even though if the proper form should be in the name of the state of Mississippi, it would certainly be for the use and benefit of the mother.
Section 758, Miss. Code 1930; United States Fidelity Guaranty Company v. Adams County, 63 So. 192; Welford v. Havard, 127 Miss. 88, 89 So. 812; Miss. Code 1930, sec. 1252; Sec. 1245, Miss. Code 1930.
When the appellant signed the bond it could have only been, under the statutes, cited, for the appearance of the defendant at the next term of the circuit court of Lee county, Mississippi, to answer the complaint of plaintiff and there remain from day to day and term to term until discharged, and if the defendant had appeared at the first term of the court, it was the duty of the appellant, if he was in any manner dissatisfied, to surrender the defendant to the court and thereby secure for himself a release from the bond.
Welford v. Havard, 127 Miss. 88, 89 So. 812.
One Frank Baker was put under bond by a justice of the peace to appear at the next circuit court to answer a complaint in bastardy. Appellant was one of the sureties on that bond. The accused appeared at the next term of the circuit court, but the case was continued, and for several terms thereafter. However, at the May, 1933, term, the case was finally called for trial, and, the accused being absent, there was a trial in his absence. The verdict of the jury was in favor of the complainant, awarding her the sum of eight dollars per month for a period of ten years. Judgment was entered on the verdict, and the judgment further recited "that on account of the failure of the defendant to appear and submit himself to the jurisdiction of the court and be amenable to its orders, judgment be recorded not only against him but against the sureties on his appearance bond;" and, after naming the sureties, the judgment directed that proper process issue to said sureties commanding them to appear at the next term of court to show cause, if any, why the judgment nisi against them should not be made final and why they should not pay the penalty of the appearance bond into court to apply on the monthly payments required by the verdict.
Proper process was issued to the sureties, and appellant appeared and resisted the entry of any judgment final against him on said bond. In the meantime, the bond had been lost from the papers, so that its precise recitals do not appear of record. Appellant contends, first, that under the language of section 179, Code 1930, the appearance bond was conditioned to require the appearance of the accused "at the next circuit court," and that when the accused appeared at that term, the conditions of the bond were fulfilled, and the sureties were thereupon released, although the case was continued at that term, and for several terms thereafter. Appellant cites 7 C.J. 983, in support of that contention.
In Welford v. Havard, 127 Miss. 88, 89 So. 812, it was held that our bastardy statute partakes of the nature of a criminal proceeding in respect to all those features of it which relate to the arrest and binding over of the defendant to appear before the circuit court. It follows, therefore, that the appearance bond in bastardy has, in respect to the stated point, the same effect as a bond for appearance in a criminal case, which is, that the accused shall appear at the next term of the circuit court and "there remain from day to day and term to term until discharged by law." Sections 1245, 1252, 1253, Code 1930.
Appellant next contends that the appearance bond cannot be converted into a bond for the payment of the judgment or for credit thereon, but that the bond to pay the judgment is another and a new bond under section 191, Code 1930. The appearance bond is not discharged except by (1) a verdict in favor of the defendant, or the equivalent thereof, or (2) the execution of a new bond under section 191, Code 1930, unless after trial such new bond be expressly dispensed with by the court, or (3) the actual delivery of the defendant into jail in default of the new bond. But when the defendant absents himself so that the new bond cannot be effectively required of or secured from him, there is nothing left to the court, so far as any bond is concerned, but to enforce the appearance bond then remaining in full effect, and to apply it towards the consummation of the general or ultimate purpose for which it was taken.
We are therefore of the opinion that the trial court was correct in making the judgment final against appellant surety.
Affirmed.