
    Sarah F. Gebhart v. Daniel S. Drake et al.
    1, The surety in a recognizance under the bastardy act, for the appearance of the defendant at the next term of the court to answer the complaint and to abide the order of the court, is not bound for the payment of the final judgment, but undertakes only for the defendant’s appearance and submission to such further order as the court may make touching his continuance or future appearance in court.
    2. Where the defendant appears at the next term of the court, as required by such recognizance, and abides the orders of the court during the term, and judgment is entered charging him with the maintenance of the child, in a specified sum, without making the orders required by the statute in relation to securing the performance thereof, and without entering a continuance of the recognizance, or of the case, the sureties in the-recognizance are discharged, and are not bound for the appearance of the defendant at a subsequent term of the court at which the case is again pending, pursuant to a mandate, on error, from the District Court.
    Motion for leave to file a petition in error to the District Court of Marion county.
    The original action was brought in the Court of Common Pleas of Marion county, on a recognizance for the appearance of the accused in a prosecution under the bastardy act. The questions arise on demurrer to the petition. A brief statement of the material averments therein is as follows: In March, 1869, on the complaint of the plaintiff, E. C. Throckmorton was recognized, under the bastardy act, to appear at the next term of the Court of Common Pleas of Marion county. The defendants, Daniel S. Drake and W. S. Drake, were his sureties. At the next term, May, 1869, the case was continued; but the defendant entered into a .new recognizance with the same sureties. The recognizance was conditioned for the appearance of the defendant at the next term, to answer the complaint against him, and to abide the order and judgment of the court. At the Pebru.ary term, 1870, the defendant was tried and found guilty. 'The court adjudged him to be the reputed father of the bastard child, and ordered that he stand charged with its maintenance to the complainant, or whoever might support lit, in the sum of $400, and ordered that $100 thereof be 'paid to complainant in thirty days, or in default, that ex- • ecution issue therefor, and for the costs. The court made no further order, and the plaintiff’ excepted. The plaintiff took the case on error to the District Court, where the order of the Court of Common Pleas was modified, by reversal of the order for execution, and by entering an ..order against the defendant Throckmorton to give security ¿to perform the order of the Court of Common Pleas as to the payment of said $400 and costs, and in default thereof, that he be committed to jail until he complied therewith ; and remanded the case to the Common Pleas for further proceedings. At the February term of that court, 1873, a default was entered on the recognizance against the sureties for the failure of the defendant to appear at that term of the court. This default, and the non-payment of the amount adjudged against the defendant in the bastardy case, are assigned as breaches of the recognizance, for which a recovery is sought.
    The sureties demurred to the petition : 1. Because the plaintiff was not entitled to sue on the recognizance — it being made payable to the State of Ohio for the use and benefit of Richland township in said county;” 2. Because the petition does not contain facts sufficient to constitute a cause of action. The court overruled the demurrer, and gave judgment for the plaintiff. The sureties took the case on error to the District Court, where the judgment of the Common Pleas was reversed, and the demurrer was sustained. Now, the plaintiff applies here by her motion for leave to file a petition in error to reverse the judgment of the District Court.
    
      H. L. Van Fleet, for the motion :
    The refusal of the Common Pleas to pass pi-oper sentence and the pendency of the case in District Court to correct the order of the Common Pleas simply suspended j udgment, and worked no release of surety.
    The judgment is rendered upon a petition filed upon a forfeited recognizance ; the forfeiture is not denied or questioned, and no motion or petition filed .to set it aside. Can this court now inquire whether the forfeiture should have been made?
    
      W. Z. Davis, contra :
    The petition shows that there was no breach of the condition of the recognizance. The contract of the sureties is that Throckmorton shall personally be and appear before the Common Pleas at its next term, or the term to which the cause is continued, without objection by the sureties (1 S. & C. 177, sec. 4), and then and there to answer, etc., and abide the order and judgment of the court thereon. If he so appear, etc., then to be void; otherwise, to be in full force. Therefore, when Throckmorton appeared in person, as the petition shows he did, at the Eebi’uary term, 1870, was tried and judgment rendered against him, and the court adjourned, the responsibility of the sureties ended.
    “Abide the order,” means “wait for the order.” "Webster’s Dictionary.
    The statute (1 S. & C. 176) provides for recognizance ior the appearance of the accused person, and in section 6, page 178, provides for another and different “ security to perform the aforesaid order,” from which it is evident that the recognizors are not responsible for compliance with the final order. Porter v. The State, 23 Ohio St. 331.
   Day, C. J.

The demurrer to the original petition put in question both the right of the plaintiff to sue on the recognizance and the sufficiency of the cause of action stated in the petition. The view we take of the latter question renders it unnecessary to decide the former. The petition is historically voluminous, and seems to be based on two grounds of recovery: 1. That the sureties in the recognizance are liable for any amount that may be adjudged against their principal in the case in which it was taken; 2. That they were in default in not bringing him into court when called at a subsequent term.

The recognizance must be construed in the light of the statute under which it was taken. That only requires the recognizance, .at most, to be for the appearance of the accused at the next term of the court, to answer the complaint, and to abide the order of the court thereon. In Porter v. The State, 23 Ohio St. 320, it was held that the “order” here spoken of, relates only to the defendant’s appearance and submission to such further order as the court may make touching his continuance or future appearanee in court, and not to the payment of the final judgment in the case. The recognizance, then, imposed no obligation on the sureties to pay the amount adjudged against their principal in the case in which it was taken. In legal effect, it only requires the accused to appear and await the order of the court.

Were the sureties bound by the recognizance for the appearance of their principal at the term of the court in which the default was entered against them? The recognizance was taken at the April term, 1869, conditioned for the appearance of the accused at the next term of the court, to answer the complaint against him, and abide the order of the court thereon. It seems to have been regularly continued by the court until the February term, 1870, when the accused appeared, and was tried and found guilty. Thereupon the court adjudged the defendant to he the reputed father of the bastard child of the complainant, and that he stand charged with its maintenance' in the sum of $400, to be paid in a specified manner at a future time, and also with the costs of prosecution. But, instead of ordering the defendant to give security for the performance of the foregoing order, or, in default thereof, committing him to jail until he should comply therewith, as required by the statute, the court awarded execution for the amount ordered to be paid to the complainant and for the costs, and thus finally disposed of the case. No entry was made continuing the recognizance, nor had there been any default entered or made under it.

Up to the final disposition of the case and close of that term of the court, the recognizance had been fully complied with. It was not intimated that the appearance of the defendant would be required at a future term of the court, and the sureties might well suppose that their obligation was at an end, since they could not know when, if ever, the ease would make its appearance again in that court. But the sixth section of the act under which the recognizance was taken, requires the continuance of the “bonds of recognizance” to be entered by order of the court, unless the security objects thereto. By clear implication, a final disposition of tbe case without a continuance of the recognizance terminates the obligation of the sureties thereon. Prom that time they could have no custody of, or power over, their principal to enforce his appearance at a future term of the court. Having been once discharged from their obligation under the recognizance, the subsequent appearance of the case in the Common Pleas, on the mandate of the District Court, did not revive the liability of the sureties. To this effect is the case of Duncan v. Tindall, 20 Ohio St. 567. They were not bound for the appearance of the defendant at the term of the court when the default was taken against them. Nearly three years had elapsed since that obligation terminated. The District Court was right in reversing the judgment of the Common Pleas, and in sustaining the demurrer to the petition.

Motion overruled.

McIlvaine, Welch, Stone, and White, JJ., concurred.  