McCook County v. Burstad

McCOY, P. J.

[1] Plaintiff’s complaint, in substance, alleges that defendant Ed. J. Burstad made complaint in due form of law before a justice of the peace of McCook county charging one Schmidt with having committed the crime of rape upon a daughter of said defendant under the age of 18 years;. that said Schmidt was then in the state of California, and said defendant requested the state’s attorney of said county to procure a requisition for the return of said Schmidt to this state, to the end that he fight be prosecuted for said criminal offense; that thereupon the said state’s *271attorney informed defendants that ,if-'sakl Schmidt were so returned, it would not result in a prosecution, but in the marriage of the daughter of’ defendants to said Schmidt, and that said Schmidt could not be prosecuted without the evidence of the daughter, and that he would not proceed in the matter of procuring said requisition, unless security for'costs were given to save the said county-harmless from costs and expenses, whereupon defendants executed an undertaking- in due form of law agreeing to pay all costs and expenses of said requisition in case the said Schmidt was brought back for trial and a marriage should take place between ■him and said daughter of defendants; that at the time of the execution of said undertaking and as an inducement to said state’s attorney to incur the expense o'f said requisition the said defendants represented that said daughter was enceinte by- said Schmidt, and that they had full control of said daughter, and that they would not consent to her marriage with said Schmidt; that thereafter the said requisition was procured, and said Schmidt returned to the state of South Dakota, and a preliminary hearing-had before said justice of the peace, and said Schmidt held and bound over by undertaking to appear at the next term of the circuit court to be held in and for said county; that at the next term of the circuit court said state’s attorney made and filed an information against said Schmidt, charging him with the crime of rape, and that before the trial of said action, and after all the costs and expenses of said requisition had been incurred, the defendants wrongfully and unlawfully consented to said marriage of their daughter to said Schmidt, and that said marriage could not. have taken place without the consent of defendants, the said daughter then being a minor under the age of 18 years; that defendants well knew that said prosecution could not proceed without the evidence of said daughter; that the attorneys ■ for said Schmidt notified said state’s attorney that they would object to the evidence of said daughter, she then .being the wife of Schmidt, and that the said state’s attorney was compelled to dismiss said prosecution; that plaintiff, said county, necessarily paid out and expended in the procuring of said requisition and the returning of said Schmidt to this state the sum of $324.50,’ no part of which has ever been repaid by defendants to plaintiff, although having been requested so to do.

*272To this complaint the defendants interposed a demurrer on the ground, among others, that it did not state facts sufficient to constitute a cause of action against defendants or either of them. The court sustained the demurrer, and plaintiff duly excepted, and now urges the said ruling of the court as error. We are of the opinion the learned trial court ruled correctly. There is nothing in the complaint to show that the said charge against Schmidt was malicious or without probable cause, so as to bring the giving of such undertaking within the provisions of the statute of this state with reference to the giving of security for costs by the prosecutor in criminal cases. Section 145, Code Cri-m. Pr.; section 117, Justice Code.

[2] The said undertaking was a contract wholly without consideration. It was commendable on the part of the state’s attorney to save his county from all unnecessary expense in the matter of criminal cause, but nevertheless, under the facts of this case, it' was his plain duty to have procured said requisition and the return of said Schmidt without''requiring defendant to- execute said undertaking. Contracts given under such circumstances are generally held to be without consideration. 9 Cyc. 347; 11 Cyc. 287. The consent of defendants to the marriage in question, instead of being wrongful and unlawful, was commendable. It saved the daughter from shame and humiliation, and made legitimate her child. It also saved1 the county the further expense of the prosecution.

The order and judgment appealed from is affirmed.'