Ingram v. State , 10 Kan. 630 ( 1873 )

The opinion of the court was delivered by

Valentine, J.:

This was an action on an instrument in writing claimed to be a criminal recognizance. The action was brought by the county attorney of Washington county in the name of the State against Edward Ingram, J. C. Hebbard and J. B. Snider, who appear to have executed the said instrument in writing as sureties for the appearance of D. A. Ingram at the next term of the district court of said county to answer to the charge of grand larceny. The defendants (now plaintiffs in error) claim that the said instrument is void upon its face for the following reasons: First, said instrument is not in form a recognizance, but is in form merely a penal bond; second, said D. A. Ingram did not sign or execute said instrument; third, the initials only of the Christian name of said D. A. Ingram are given in said instrument, his full ohristian name not being given.

i Recognizance namesofparties, initials. We think the said instrument is sufficient as a recognizance, notwithstanding these supposed defects. The instrument purports upon its face to be a recognizance. It was given by the Par^es as sn°h. The parties call it such in the instrument itself, and it was taken and approved ' ^ 0fficer ag is true, that that portion of the instrument which contains the obligation is in the form of a penal bond, and not in the form of a recognizance. It is true, that that portion of the instrument seems to create a new debt or obligation as a penal bond does, and is not the acknowledgment of a pre-existing debt, as a recognizance is; but this is such an immaterial difference that the instrument cannot be declared void under our statutes merely for that reason: (criminal code, §154.) The defendants signed and executed this instrument, and it was not necessary in order to bind them that D. A. Ingram should have signed or executed it. The instrument is not void because the initials only of the Christian name of D. A. Ingram are used. (Ferguson v. Smith & Dunham, ante, 396.). We therefore think said instrument is sufficient as a recognizance under our statutes, and that it may properly be called a “ recognizance.”

2. proof of execution of recognizance, 3. Default of Proceedings, The execution of said recognizance was properly alleged in the petition in the court below, and was not denied by an answer verified by affidavit, and therefore no ,. , . , , n n question can be raised as to the due execution oi the recognizance: (civil code, § 108; Reed v. Arnold, ante, 102; Mo. R., Ft. S. & G. Rld. Co. v. Wilson, ante, 105.) We think the petition in the court below states sufficient to constitute a cause of action. It is true, as is claimed by plaintiffs in error, that the petition “ does not allege that the defendants or either of them were called, and made default;” but it does allege that D. A. Ingrata, (the only person who was required by the recognizance to appear at court,) was duly called, and that he made default. It is also true that the petition does not allege that the default of D. A. Ingram was ever made a matter of record. But notwithstanding these omissions we think the petition is sufficient. It was not necessary to call the sureties on the recognizance; and the failure of the clerk to enter the default of D. A. Ingram will not defeat any action on the recognizance. (Criminal ■code § 154.)

4. Answer — genwlatg’put m issue. The defendants filed an answer to the plaintiff’s petition •denying generally all the allegations thereof, and setting up ■some other matters of defense. The plaintiff demurred to the answer on the ground that it did not state ° facts sufficient to constitute a defense to the plaintiff’s action. The court sustained the demurrer and rendered judgment on the pleadings for the plaintiff. This was erroneous. The general denial of the defendants was a good defense to the plaintiff’s action. While it could not of course put in issue the execution of the -recognizance, as the answer was not verified by an affidavit, yet it did put in issue the fact whether D. A. Ingram made default or not. If Ingram appeared at court, as required by the recognizance, then of course no cause of -action ever accrued against the defendants. This fact was put in issue by the pleadings, and could be determined only by a trial upon the evidence. The judgment of the court below is reversed and cause remanded with the order that the demurrer to the answer be overruled, and for further-proceedings in accordance with this opinion.

All the Justices concurring.

Another case between the same parties (except that the action below was upon another recognizance,) was brought to this court, and heard and decided with this case. In said' cause the opinion of the court is as follows:

Valentine, J.:

The questions involved in this case being precisely the same as those involved in the case of Ingram,, et al., v. The State, just decided, the decision' and judgment will be the same as in that case.

All the Justices concurring.