State v. Goss

PROVOSTY, J.

The accused, Walter Goss, charged with selling spirituous liquors without a license, was bailed by verbal order of the judge, given over the phone; and Byron B. Hughes, whose succession the relator represents, became surety on the bond. The accused fled from justice before trial, and in due course, judgment of forfeiture was entered on his bond. The relator took a rule on the district attorney to show cause why the forfeiture should not be set aside as to the surety, for the reason that, the district court being a court of record, a verbal order of the judge of that court, authorizing bond to be taken and fixing its amount, is an absolute nullity, and any judgment of forfeiture rendered on such a bond is likewise an absolute nullity.

The court refused to annul the judgment of forfeiture and dismissed the rule. An appeal was taken to this court, which is still pending. Of that appeal this court has no jurisdiction, for the reason that proceedings for the forfeiture of criminal bonds and for the setting aside of the judgment of forfei*97ture of such bonds are criminal proceedings, which follow the case in which the bond was. taken, and. are appealable or not to this court accordingly as the ease itself was so appealable (State v. Dykes, 126 La. 139, 52 South. 245); and the case in which the bond now in question was taken was not appeal-able to this court, since the crime charged against the principal on the bond (selling intoxicating liquors) is not one which, of itself, would confer jurisdiction; it not being necessarily punishable by imprisonment at hard labor or by death, and no fine of $300 having been imposed. State v. Cox, 114 La. 567, 38 South. 456. Realizing the futility of the appeal, relator has abandoned it, and had recourse, by the present proceeding, to the supervisory jurisdiction of this court.

The learned trial judge suggests that the judgment on the rule is res judicata of the validity of the judgment of forfeiture; and so it is, so long as not set aside; but the aim of the present proceeding is to set it aside. In the case of State v. Judge, 35 La. Ann. 214, cited by our learned Brother, the proceedings in this court were aimed at the judgment of forfeiture alone; no attack was being made on the judgment in the suit in nullity, and the judgment in the latter suit was held to be res judicata of the attack upon the judgment of forfeiture. In the present case the attack is upon the judgment in the suit in nullity, and it stands to reason that that judgment cannot be res judicata of the present proceeding. No more than in a case of appeal, the judgment appealed from can be res judicata of the appeal.

Next it is suggested that, while the proceedings to perfect a criminal .bond are criminal, a suit in nullity to set aside a judgment of forfeiture is purely civil, and that therefore the remedy of the relator in the present case was by appeal to the Court of Appeal; the amount of the judgment sought to be annulled being $500. The suggestion has no force. Action of nullity is a mode of reviewing the judgment of forfeiture, and appeal is another. The appeal in such a case is a criminal proceeding, and so, for like reason, the action of nullity is a criminal proceeding. The effect of the judgment of the Court of Appeal, had it sustained the action of nullity, would have been to set aside the forfeiture. The action to set aside the forfeiture — be it appeal or suit in nullity— necessarily follows the criminal nature -of the forfeiture.

Finally it is said that the surety, having obtained the release of the accused by signing the bond, is now estopped from contesting the validity of the bond, and especially will not be allowed to do so while the accused is a fugitive from justice. These points were adversely passed on in several of the cases cited below.

For the reason assigned in the rule, the judgment of forfeiture is an absolute nullity. State v. Toups, 44 La. Ann. 896, 11 South. 524; State v. Balize, 38 La. Ann. 542; State v. Williams, 37 La. Ann. 200; State v. Wilson, 13 La. Ann. 288; State v. Smith, 12 La. Ann. 349; State v. Cravey, 12 La. Ann. 244; State v. Gilbert, 10 La. Ann. 532; State v. Clendennen, 6 La. Ann. 744; State v. Lougineau, 6 La. Ann. 700; State v. Simpson, 122 Da. 309, 47 South. 622.

It is therefore ordered, adjudged, and decreed that the judgment rendered by the Twenty-Fifth judicial district court for the parish of Tangipahoa, on the 21st day of February, 1910, in the matter of State of Louisiana v. Walter Goss, No. 1,718 of the docket of the court, against B. B. Hughes, Sr., for the sum of $500, with interest, be and is hereby annulled and set aside.