State v. Rhonimus ( 1872 )

Tarbell J.:

This case comes to this court from the decision of the circuit court of Grenada county, upon, a demurrer to scire facias. The writ was issued to the sheriff of that county commanding him to summons Ellen Rhonimus, principal, and S. S. Fairfield and Mrs. L. C. Saddler, sureties, in a recognizance, etc., to show cause why a judgment nisi therein should not be made final, and for execution. The scire facias recites that, whereas, Ellen Rhonimus, had been “ recognized to appear at the said circuit court, “ to answer unto the state of Mississippi, on a charge of assault and battery with intent kill and murder,” etc., and then proceeds with the usual formality and particularity. To this writ the defendants therein demurred, assigning for cause thereof, that the facts as to the recognizance, the person by whom taken, whether a magistrate, sheriff or other person, and by what authority, whether in virtue of the code, or by order of some court or magistrate; in short, that all the circumstances of the execution of such recognizance should be set out in the writ, so that upon the face of the latter the legality of the former might be determined; in other words, that the phrase “had been recognized” does not show a legal recognizance, and consequently, that the scire facias fails to set out a good cause of action. And this presents the question in the cause for our determination.

In Ditto et al. v. the State, 30 Miss. 126, it is said, that “ after the judgment nisi, and when the scire facias has been issued to enforce that judgment, the recognizance is not properly a part of the record of that proceeding, and must be brought before the court by plea of nul tiel record, or other appropriate plea.” And in Fields et al. v. the State, 39 Miss. 509, the court say: “ If, therefore, a party should avail himself of the insufficiency of the authority under which the recognizance was taken, by way of defense to a scire facias upon the judgment of forfeiture, he must do so by plea, presenting the question in a proper manner for consideration. It cannot be reached by demurrer to the scire facias, because it is not properly a part of the record of that proceeding.” The case at bar is thus, in our courts, concluded against the demurrer, and we think the scire facias sufficient within the spirit, if not the letter, of our statutes; according to which, prima facie, the judgment nisi temporarily, though not finally, disposes of the legality of the recognizance. Primarily, with us, the defendants, in a proceeding by scire facias, are called upon to answer to the judgment, and not to the proceedings, on the recognizance. Of course, a sufficient cause of action must be stated in all cases; but pleadings are greatly simplified with us (Code of 1871, sec. 577); and, on the subject under consideration, the legislation and practice of other states are, in some respects, different from our own. Code, § 334; ib. art. 6, ch. 59, title, Bail. See also ib. § 586. We are of the opinion that the scire facias in this case is in harmony with the statutes and adjudications of this state, and defensible on principle. No injustice can come to the defendants. They are deprived of no right, nor prevented from interposing any legitimate defense. This ruling simply casts upon the defendants the labor of prosecuting their own defense, if they have any, rather than devolving it upon the state to prepare their case for them, upon the face óf the scire facias. The demurrer in this case was sustained, when it should hav¿ been overruled.

Whereupon the judgment is reversed, the demurrer is overruled here, and the cause remanded for further proceedings.