Livingston v. People

Opinion of the Court, the

Hon. Carroll C. Boggs, Judge.

The record does not bring before us for consideration the sufficiency or insufficiency of the evidence. The bill of exceptions made up and signed at the instance of tl. e appellant does not state that it ccntams all or even any portion of the evidence. It does shew the final order and judgment of the court and in this order it is recited that the court heard “ the evidence produced by the parties.” It is to be presumed, therefore, that the evidence which the court heard was sufficient to warrant the action of the court. We find in the record another bill of exceptions which does purport to preserve all the evidence. This bill was filed for the purpose of bringing before this court, by way of an assignment of cross-errors, an exception taken by the relatrix to the ruling of the Circuit Court upon a motion made by her to dismiss the appeal of the appellant, and it sets out only the proceedings in the case np to the time when 'such ruling was made. The statement in this bill that it contains all the evidence must be understood to mean all the evidence produced prior to and upon the hearing of the motion to dismiss. If this latter bill could be brought to the aid of the appellant it would in no wise serve to benefit Ms cause—for we find from it that by the agreement of the parties the findings of the County Court, as recited in the transcript of the proceedings in that court, were to be received and were received and read in evidence by agreement as competent testimony. That the appellant failed to pay the money or to give the security required by the order of County Court at its April term, or to perfect an appeal from that Order, abundantly appears from such transcript.

Indeed it is manifest that the truth of the allegations of the petition was not contested by the appellant in either the County or Circuit Court—but that he and his counsel at every stage of the proceedings relied solely upon the supposed lack of legal power and jurisdiction of the County Court to act upon the petition.

No propositions were presented to the court to be held as the law of the case and we might content ourselves with the observation that the record does not bring before us the questions of law or fact that the appellant seeks to have considered. We have, however, given attention to the assertion that the County Court had not jurisdiction of the petition nor legal power to act upon it.

The action of that court, at its June term, is not, as appellant urges, to be regarded as amendatory of the order and judgment rendered at its April term. While it would have been entirely proper, and perhaps in accordance "with the usual practice, to have included in that order or judgment of the April term a declaration that the defendant should be committed to the county jail if he failed to give security or make the payment as required, yet we do not think the right to thus enforce obedience to the judgment rests at all upon or grew out of such statement. The ninth section of the Bastardy Act provides that the defendant shall be committed to the county jail if he refuses or neglects to give the security. The imprisonment is a legal consequence of a failure or refusal to comply with the judgment—a means provided by law for the enforcement of the judgment—and does not depend at all upon a recitation in the judgment or order of the court that such means may be resorted to. A judgment has nothing to do with the means provided by law for its enforcement. An order for execution or other process or means of enforcement provided by law is not an integral part of a judgment, and need not be therein set out. Black on Judgments, Yol. 1, pages 4 and 8; 7th Amer. and Eng. Ency. of Law, page 119, note 6. The judgment of the April term was complete and needed no amendment to entitle the relatrix to demand its enforcement by the means provided by law. The appellant prayed and was granted an appeal from it upon filing an appeal bond within a specified period. He did not pay the money or give security therefor, as required by law— nor did he perfect an appeal.

The petition filed to the June term brought the knowledge of such default of the appellant to the court as a basis upon which to ground an application for the enforcement of the judgment.

The court found upon hearing, to which the appellant voluntarily submitted himself, that its order and judgment had not been complied with, and, as we think, properly ordered that the appellant be committed to the county jail, as provided by Sec. 9 of the Bastardy Act. At its April term the court might, no doubt, have committed the appellant to the custody of its officers or to the county jail until an appeal bond had been filed or security given for the payment of the money ordered to be paid, but this course was not imperative, nor was the right to enforce compliance by imprisonment lost, by reason of the leniency of the court in this respect.

Upon proof of non-compliance, afterward made, the judgment could lawfully be carried into execution in the manner pointed out by the statute.

All other complaints of the appellant relate solely to mere irregularities in the course of the trial at the April term of the County Court and can not avail the appellant in this, a mere collateral proceeding thereto.

The order and judgment of the Circuit Court must be and is affirmed.