Wills v. Neilan ( 1893 )

Given, J.

Our inquiries are limited to the questions of law stated in the certificate, and these we are to decide in the light of the specific facts certified that relate to those questions. The specific facts certified are that the appellant, sitting as a police judge, found the appellee guilty of an offense over which that court had jurisdiction, and, as authorized by law, entered judgment against the appellee that he pay a fine of ten dollars, or be imprisoned in the city jail for three days. At the same time the appellant, as police judge, ordered that ten dollars of the certificate of deposit theretofore deposited by the appellee in lieu of bail be applied on the fine, and that the balance be returned to him. The appellee then “elected to take the jail part of the sentence,” but was not committed. The question certified is whether the appellant is liable to a civil action in detinue for so applying the certificate of deposit in his possession, “when the prisoner preferred.to serve the jail part of the sentence.” The appellant’s authority to receive the certificate of deposit in lieu of bail, and to order it applied as he did, is not questioned in the certificate; only his liability in a civil action in detinue for so ordering it to be applied “when the prisoner preferred to serve the jail part of the sentence.” The judgment is in the alternative, and would be satisfied by either payment or by imprisonment, but, until satisfied, it might be enforced either by collection or by imprisonment. The appellee had the right to pay the fine, and thereby avoid imprisonment, but he had no right to elect to go to jail instead of paying the fine. The judgment not' being satisfied, it might be enforced either by collecting the fine or by imprisonment. The appellee’s election to be imprisoned was no bar to the appellant’s right to enforce collection.

It follows from these conclusions that the question certified must be answered in the negative, and that the judgment of the district court must be bevebsed.