State ex rel. Gleim v. Evans , 13 Mont. 239 ( 1893 )

Harwood, J.

Petitioner was entitled, under the provisions of the law, to a change of venue, on the affidavit and application presented, and therefore, Justice Evans had no jurisdiction to proceed further, after the presentation of said affidavit and application for removal of said cases to another justice of the peace. His jurisdiction was terminated by that proceeding. It appears to be conceeded that the showing was sufficient to entitle petitioner to a change of venue, but the attorney general objects, on behalf of respondent, that the application for a change of venue was not made in time, because the case had been set for trial. This position, however, cannot be sustained. The case had merely been continued to a certain day, and it cannot be maintained that the trial had commenced, in any sense, when the applications for change of venue were made. (Murfree on Jurisdiction of Justices, sec. 502.) The statute clearly contemplates that if the application be made before the trial is commenced, it is in time, and the statute provides that the application for removal of the case to another justice may be made after a jury has been called for. (Com. Stats., § 780, p. 262.) But in the case at bar a jury had not even been demanded when the application was presented. It follows that all proceedings in said case taken by said justice of the peace, after application for change of venue, were in excess of his jurisdiction, because, by that event, his jurisdiction for further action, otherwise than transferring said cause to another justice of the peace, as provided by law ceased. (People v. Hubbard, 22 Cal. 35; Herbert v. Beathard, 26 Kan. 746; Hellriegel v. Truman, 60 Wis. 254; Jenkins v. Morning, 38 Wis. 199; State v. Clayton, 34 Mo. App. 563.)

On the second point raised by petitioner’s couusel we are also unhesitatingly of opinion, that, under the facts set forth in the return of respondent, his action in declaring the bail money deposited by defendant forfeited was unwarranted, and in excess of his jurisdiction, and therefore must be annulled. Defendant was charged in each case with acts amounting to a misdemeanor. The Criminal Practice Act provides, in section 200, that if the defendant is charged with a misdemeanor, “his personal presence is not necessary, and he may appear, be arraigned, and plead by counsel”; and while section 478 of the Criminal Practice Act, especially pertaining to prosecutions in justice’s courts, provides that “defendant must be personally present before the trial can proceed,” we do not think the latter provision, in view of others, was intended to be so construed and applied so as to work injury to defendant. Its purpose was to provide that before the trial could proceed, jurisdiction of the person of defendant must be acquired by his arrest and arraignment, whereby he would be informed of the charge preferred against him, and would be put upon notice to obtain counsel, and prepare for his defense. And if defendant is held in custody, the requirement is, to bring him in to be present at the trial, and not proceed in his enforced absence. But if the defendant has furnished the required bail for his appearance, and to answer any judgment that might be rendered against him, and he is at liberty to attend his trial, and has counsel present to represent him, and the judgment is promptly satisfied, we are fully of tlie opinion there would be no ground to warrant the forfeiture of the bail, under such circumstances, and such were the circumstances under which the order was made declaring the bail forfeited in the proceeding under review. (State v. Rickards, 21 Minn. 47.) Such a ruling would turn a law, undoubtedly made for the protection and benefit of the accused, to his disadvantage and oppression.

It should be further observed that the justice also exceeded his jurisdiction in undertaking to make disposition of said bail, money in such a summary manner, as recited in his return, for., the law plainly provides, in section 504 of the Criminal Practice Act, that “ in case of the breach of any recognizance en- • tered into as aforesaid, the same shall be certified and returned to the district court, to be proceeded on as recognizances certified to such court by magistrates.” In this instance, the money deposited by defendant, coupled with the conditions provided by law, was her recognizance.

Respondent’s counsel objects that the writ of certioraH is not the proper remedy to review said proceedings of the justice, because appeal to the district court is provided, in favor of defendant, in case of conviction. The appeal provided for in such cases takes the case into the district court for trial de novo of the issues involved. In this ease the issue involved is whether or not defendant is guilty of assault, as charged in the complaint, and put in issue by her plea of “not guilty.” Such issue in no way involves the action of the justice of the peace in declaring forfeited the bail money deposited by defendant. Besides, defendant submitted to the fine, and therefore there was no case for appeal on her part. Nor would such appeal, under our practice, for trial de novo, afford any relief against the action of the justice in retaining said case and proceedings therein, after demand for change of venue. If it be true, as shown by the authorities, and held above, that the detention of said case, and further proceedings therein by Justice Evans, was unauthorized, and in excess of his jurisdiction, the appeal for retrial of the issues involved in the case would in no way give the petitioner relief against said acts of the justice, in excess of his jurisdiction. The appeal would rather involve a submission to such action, as though it was fully •within tlie justice’s jurisdiction. The authorities are against the proposition of respondent’s counsel, that this proceeding for correction of excessive action of the justice of the peace is improper practice. (See cases cited supra, and especially State v. Clayton, 34 Mo. App. 563, and Combs v. Dunlap, 19 Wis. 591; Withington v. Southworth, 26 Mich. 381.)

For the foregoiug reasons, it is ordered that the order of the justice of the peace, declaring forfeited said sums of money, amounting to six hundred dollars, deposited in said cases by-defendant, as bail for her appearance, and to answer any judgment that might be rendered against her in said actions, are hereby set aside and annulled.

Pemberton, C. J., and De Witt, J., concur.