County of Tulare v. Fenn

CONREY, P. J.

In December, 1917, while the defendant was acting as a magistrate of the county of Tulare under and by virtue of his office as recorder of the city of Lindsay in that county (said city of Lindsay being a city of the sixth class), he received a complaint in writing made to him as such magistrate, charging one Ah Wong with the commission of a felony. Such proceedings were had that said magistrate received from the said Ah Wong the sum of five hundred dollars as bail and undertaking that the said Ah Wong would appear, etc., as required. At the time set for the examination of Ah Wong before the defendant upon said charge of felony Ah Wong did not appear. Thereupon the said Fenn, acting as magistrate, entered the ii.ct of such nonappearance upon the minutes of the recorder’s court of the city of Lindsay, and did declare said sum of five hun- ■ dred dollars to be forfeited by the said Ah Wong. That forfeiture has' become final; nevertheless, the defendant has not paid said sum to the treasurer of the county of Tulare.

[414]

On these facts, which are pleaded more fully in the complaint, the county of Tulare brought this action to recover judgment against the defendant for said sum of five hundred dollars. . By his answer to the complaint the defendant admitted the allegations of the complaint, except that the defendant denied that there is due, owing, and unpaid from the defendant to the plaintiff the said sum, or any sum whatever. An affirmative defense was also pleaded, under which it was claimed that the money forfeited as aforesaid was forfeited to the city of Lindsay and not to the county of Tulare, and the money paid over to the said city of Lindsay. On the pleadings above mentioned, the plaintiff moved for a judgment on .the pleadings. Said motion having been granted, judgment was entered accordingly, and the defendant appeals therefrom.

[1]

In support of the plaintiff’s claim of right to the money in question, we are first required to consider certain sections of the Penal Code in the chapter which relates to the taking of bail. “Admission to bail is the order of a competent court or magistrate that the defendant be discharged from actual custody upon bail.” (Pen. Code, see. 1268.) Section 1295 permits the deposit of money instead of an undertaking in writing. Section 1307 reads as follows: “If, by reason of the neglect of ,the defendant to appear, money deposited instead of bail is forfeited, and the forfeiture is not discharged or remitted, the clerk with whom it is deposited must, at the end of thirty days, unless the court has before that time discharged the forfeiture, pay over the money deposited to the county treasurer.” •