Evening journal., 1897-09-27


enabled to obtain the payment of the
money secured to him by the judg-
ment. But is this forthcoming bond a |
judgment as we'll as process2 pl
The proceeding which produced this
bond was purely ministerial; the judi
cial mind was in no way employed in
its production. 10 does not then, pos
sess the attributes of a judgment, and
ought, therefore to be treated in this
court as final process. or at least as part
Of the final process. Re
garding the forthcoming bond as part
OF the process Of execution, a refusal
to Quash the bond Is not a Judgment OF
The court, and much less is it final
Judgment; and, therefore, no wn, OF
error lies in such a case"
Attention was drawn in the argu-
ment to section 5S7 of the Revised Stat
utes, which provides that, where suits
and processes, with the proceedings
thereon, are certified from a district
court into circuit court on
account Of disability of the
district judge, call bonds and recog-
nizances taken for, or returnable to,
such district court shall be held TO
be taken for and returnable to
said circuit court, and shall have the
same effect therein as they could have
had in the district court to which they
were taken" and it was urged on be-
half of the recognizors that, as provi-
sion was made for recognizances in eX-
press terms in that section, they would
have been expressly referred to In sec
tlon 602, n The latter section had been
intended to apply to them and that,
as no such express reference is con-
tanned therein, the section cannot be
held applicable to them. But no such
inference can justly be drawn from sec
ton 5S7. It's purpose with respect to
recognizances was, under the circum-
stances therein set forth, to make them
operative in n court other than that for
which they were taken or to which
they were returnable according TO their
express terms. Such q provision was
probably necessary To accomplish the
Intended result. Under section 602
however, q recognizance taken FOR or
returnable to n district court is not di-
verted from Il. but. IN case of a va
cancy Is simply continued in force, and
may we'll bo included in the express
provision for the continuance OF pro-
cess.
In view OF The foregoing considera-
tions. the recOgnizance entered into by
The defendant and his surety must be
held to be process within the meaning
of section 602, and as such, by opera
tion of law. continued in force until the
last regular June term of this court
The fact thai the recognizance was re-
spited can in nowise affect the result.
It may further be observed that the
words proceedings pending before
such court" are in themselves broad
enough to include the recognizance in
question. It was filed in court and
thereafter resDited until March g. the
defendant and his surety both consent
ing thereto in open court. The legal ef-
feet of this proceeding was to alter the
condition of the recognizance by en-
larging the time for the appearance Of
the defendant Thus. the recog-
nizors in open court undertook that the
defendant should appear in court on
the day to which the recognizance was
respited. On that day the vacancy ex-
listed. The recognizance, as respited
was a proceeding pending before the
court during the vacancy. In Com
monwealth v. Clayton, 2 Dana 1873, Il
was held by the Court of Appeals OF
Kentucky that a recognizance for ap-
pearance in a criminal case was "a
matter depending I'm court, and that a
statute of that state on the subject was
broad enough to include 1t. The court
said:
BY this recOgnizance. rightly under
Stood Clayton undertook to appear I'm
court on the first day OF the first court
that should be held; and. therefore.
not having been exonerated by the nom
attendance of the Judge at the first
term. it was his duty to appear on the
day on which the motion was made by
the attorney for the commonwealth: I:
for that was the first day Of the first
court succeeding the date OF his recog-
nizance. But, II there could be any
serious doubt as 10 the correctness OF
thls Interpretation of the condition of
the rec0gnizance. the ninth section Of
the act OF 1898, I Dig $40, should De
deemed sufficient to show that by
operation of law. the time for appear
ance was postponed. The recognizance
was "A matter depending I'm court f."
Therefore, If II should be assumed that
the recOgnlzance was not continued in
force as process" it retained It's vi
tality by virtue Of section COZ as a part
Of the proceedings pending before
such court"
Examination has failed to disclose
the existence of any statute which un-
der the circumstances of this case I'm
any manner controlled or modified, the
proper operation of that section upon
the recognizance I'm question. Even
were it conceded that the statutes Of
the United States authorized the as
signment Of a judge to exercise the
powers and duties of this court during
the vacancy point by no means
clear-the result would be the same
No judge was assigned. The recOg-
nizance, therefore, was continued in
force until the next stated term after
the appointment and qualification Of
the present incumbent. and the de-
fendant having failed to appear in this
court on the first day Of that term, it
was then and there duly and legally or
dered and declared forfeited.
The conclusions reached render 10
necessary to the decision of the mo-
tion before the court to pass upon the
a.. lf.