People ex rel. Burnett v. Morstadt

Garoutte, J. This is an appeal from an order of the superior court directing the issuance of a writ of mandate to the appellant, a justice of the peace of Sonoma county, requiring him to enter in his docket the failure of one Berta to appear for examination on November 10, 1891, at 11 A. m., and also commanding said justice to declare a certain undertaking of bail, given by defendant prior to that time, forfeited.

Berta was charged with the offense of embezzlement, and upon his arrest gave a bond in the sum of one thousand dollars, with two sureties, conditional that he would appear and answer the charge when ordered by the court. By consent of the attorneys the examination was set for November the 10th, at 11 a. m. In the mean time a demurrer was filed to the complaint upon the ground [380]that it stated no cause of action, and the argument of this demurrer was taken up on the 10th of November, at 10 a. m. This argument continued until 11:25 A. m., when the following occurred, as appears by the evidence of the justice of the peace: “Now, when it was 11:25 a. m., Mr. Leppo (deputy district attorney), in the midst of his argument of the demurrer, pulled out his watch and says: ‘I ask now the court to send the constable in front of the courthouse and call H. Berta three times, and if he shall not answer to declare his bond forfeited.’ I .told him I could not do any thing of the kind, because if I sustained the demurrer we don’t want him. The very question of the demurrer is whether it shall be we want Berta or not.” It thus appears that the justice declined to grant the request of the district attorney, and the subsequent history of the litigation, as evidenced by the record, discloses that his argument bearing upon the legal question raised by the demurrer was not convincing, for the demurrer was sustained, and no amended complaint being filed, Berta was not “ wanted,” and the proceeding terminated.

We think the judgment should be reversed and the proceeding dismissed. As to whether the filing of a demurrer to a complaint charging a defendant with felony is an authorized practice we are not called upon at the present time to decide; neither are we justified in reviewing the legal soundness of the court’s views as indicated by its order in sustaining the demurrer to the complaint. The condition of the defendant’s bail bond was substantially that he would hold himself amenable to the orders of the court, and when the court took up the consideration of the demurrer to the complaint at 10 a. m. and the argument thereon was still in progress at and after 11 a. m., the hour set for the examination, we think the further hearing of that matter by the magistrate was, in effect, a continuance of the examination until the argument of the demurrer was concluded. Thereis no doubt but that the magistrate had the power to continue the examination even in the absence