Clark v. Petty , 29 Ohio St. 452 ( 1876 )

Boynton, J.

The demurrer to the amended petition, on the ground that the facts stated therein were insufficient to-constitute a cause of action, gave rise to the question of the plaintiff’s right to maintain the action on the recognizance. Another question was raised at the trial, which, it is contended, is decisive of the case on its merits, and entirely fatal to any right of action on the recognizance. The recognizance, by its terms, is to the state “ for the use and benefit of Marion township.” The settlement of the mother of the child was in Green Gamp township ; and it is claimed that, inasmuch as Marion township can not be made liable for the support of the child, the recognizaneeis inoperative and void. The 4th section of the bastardy act makes it the duty of the justice, upon non-compliance-by the accused with the provisions of the 1st and 2d sections of that act, to bind him in a recognizance to appear at the next term of the court of common pleas, with sufficient security, in a sum not less than $300 nor more than $600, “ for the benefit of the township in which such bastard child shall be born,” to answer such accusation, and to-abide the order of the court thereon. The township evidently intended is the one wherein the mother has her legal settlement, and upon which she and the child would become a public charge, if reduced to the extremity of requiring public support. Such township by name need not be designated in the recognizance. It is sufficient, if any allusion need be made to it at all, to employ the-language of the statute; to wit, “for the benefit of the township in which such bastard child shall be born.” It is of no concern to the defendants below that the wrong township was named. If the action were upon a bond of indemnity, the objection to recovery would be more pertinent. But the statute ascertains and determines who shall receive and have the funds collected upon the recognizance, and in a measure at least the purposes to which they are to be applied; and a misnaming of the township for whose use and benefit the recognizance is taken, or substituting the name of another township, will not invalidate it, nor have the effect to divert the fund from its intended use. But we are of the opinion that the complainant in bastardy can not maintain the action. It is true, in the case at bar, the complainant is entitled to the greater part of the fund when collected, by virtue of the-order directing the sum charged on the putative father for the support of the child to be paid to her, taken in connection with section 8 of the bastardy act, which directs the’ amount of the forfeited recognizance to be applied, to the extent necessary, to the extinguishment of the sum or sums so charged upon him. But the recognizance runs to the state, and necessarily so. _ And when properly forfeited, the whole sum,in which the recognizors acknowledged themselves to be indebted to the state, became due. As above intimated, it is not a mere bond of indemnity, nor in the nature of such bond. Porter v. The State, 23 Ohio St. 320. And when forfeited for the non-appearance of him for whose appearance it was given, the penalty is due, although such person may subsequently appear and submit to the order and judgment of the court. The cause of action can not be split into two, nor divided so as to authorize more than one action upon it.

The court has not that discretion to remit or reduce the whole or any part of the penalty which it has, in an action upon a recognizance, given in a criminal cause. Such power ■or discretion to remit or reduce the penalty, where the action is upon a recognizance entered into to secure the presence for trial,of a person accused of a criminal offense, is conferred by section sixty-four of the code of criminal procedure, and .applies only to cases involving a. charge of a violation of the criminal laws of the state. The court, by that section, in acting upon cases brought within its provisions, is clothed with an equitable discretion not possessed in actions upon recognizances, to which its provisions do not apply. In Johnson v. Randall, 7 Mass. 396, Parsons, O. J., says : “ A party and his sureties can not be relieved against the condition of a recognizance, but may against the penalty of a bond.” And in Mariner v. Dyer, 2 Greenl. (Me.) 165, a recognizance was held void, the statute requiring a bond .with sureties.

In an action upon a recognizance of the character here sued upon, the recognizance fixes and determines the extent of liability. Either the whole penalty is due or nothiug. The action to recover it is one at law, .and not in equity. The case well illustrates the necessity of the rule requiring the action upon the recognizance to be brought in the name of the state. Its penal sum was $500. This, with interest upon it from the date of forfeiture, was the exact measure of the defendants’ liability. The plaintiff Avas entitled to less than $400, and this not in her own right, but in right of the child, to the support of which the sum,when received, was to be applied. The balance belonged to the township, and its right to maintain an action for the residue of the penalty, would be of the same nature as that insisted on-by the plaintiff to sue for the sum charged on the putative father,for the child’s support. But it is very clear that the forfeiture of the recognizance gave rise to but one right of action; or, rather, it was a judicial determination that the condition of the recognizance had not been complied Avith. The acknowledged indebtedness to the state Avas therefore left subsisting. And to recover that debt one action only will lie, and that action must be brought by the state, the common trustee, for the purposes of the action, for all who are or may be entitled to the fund when collected. The demurrer to the amended petition should have been-sustained.

Motion granted; the judgment of the district court and that of the common' pleas are reversed, and the petition •dismissed.