Allegheny Mut. Cas. Co. v. State, 601

• Decision Date: 09 February 1977
• Docket Number: No. 601,601
• Citation: 35 Md.App. 55,368 A.2d 1032
• Parties: ALLEGHENY MUTUAL CASUALTY COMPANY v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 55

35 Md.App. 55

368 A.2d 1032

ALLEGHENY MUTUAL CASUALTY COMPANY v. STATE of Maryland.

No. 601.

Court of Special Appeals of Maryland.

Feb. 9, 1977.

William T. Wood, Rockville, with whom were Wood & Longest, Rockville, on the brief, for appellant.

W. Timothy Finan, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Andrew L. Sonner, State's Atty., Montgomery County and Laurence D. Beck, Asst. State's Atty., Montgomery County on the brief for appellee.

Argued before GILBERT, C. J., and MENCHINE and LOWE, JJ.

GILBERT, Chief Judge.

The abrupt cessation of the policy of benign neglect in enforcing bail forfeitures, wittingly or unwittingly allowed by the State's Attorney's Office of Montgomery County, by failure to follow through on bail forfeitures, has jolted the bondsmen. This appeal arises from a combination of the State's Attorney's insistence upon payment of the forfeitures and the circuit court's declination to recommend to the Governor a remission of the forfeitures either in 'whole or some part thereof.' See Md.Ann.Code art. 41, § 50.

The case sub judice actually involves twelve (12) different bail bond forfeitures arising from a dozen criminal cases called to trial before the Circuit Court for Montgomery County. In each case, the accused, who had been released on bail pending trial, failed to appear at the time and place designated, and the trial judge ordered the forfeiture of the bail.

Apparently as a result of an inquiry by Judge David Cahoon as to the status of the bail forfeiture situation, it was determined that there were a number of cases wherein Allegheny Mutual Casualty Company (Allegheny) was the surety for the bail, but, despite the forfeiture, no monies had been paid over to the Clerk of the Court.

Allegheny filed, in each case, identical petitions to strike the forfeiture, alleging in part that it was not notified that its bail had been forfeited. Most of the petitions also averred that the defendant had, at some subsequent time, been tried, the purpose of the bail was thus satisfied, and neither the State nor the County had incurred any 'costs or expenses . . . as a result of the defendant's failure to appear' at the time originally set for trial.

All cases were consolidated and were heard by Judge Richard B. Latham who rejected all petitions, save one.

In this Court, Allegheny posits trine reasons why it believes the forfeitures should be reversed, namely:

'I. The trial court erred in refusing to grant a Surety's Petition to have certain bail forfeitures stricken when the Surety was afforded no notice that the bond forfeitures nisi's had been entered by the Court.

II. The trial court erred in refusing to grant a Surety's Petitions to have certain bail forfeitures stricken when there were no actual expenses incurred for the defendant's arrest, apprehension, or surrender in the cases.

III. Justice will be served by remanding each of the consolidated cases for a further hearing to determine the reasons for the non-appearance of the defendants below.'

I.

Allegheny is of the opinion that in order for there to be a valid forfeiture the surety must be placed on notice of the entry of the forfeiture. It seemingly likens the forfeiture to a civil adversary proceeding which would require notice to the opponent. Allegheny reasons that once they are placed on notice then Md.Ann.Code art. 27, § 616 1/2(d) is triggered and the surety is allowed ninety (90) 'days from the date of failure to appear to produce the defendant in court before requiring any forfeiture of bail or collateral.'

Allegheny's argument ignores the conditions of the very bonds that it posted to assure a defendant's appearance before the court at the scheduled time. A bond provides substantially that the defendant and the surety are jointly and severally bound to pay the State a sum of money if the defendant fails to 'well and truly make his appearance before' the court and to answer to the charges. The bond is not conditioned upon notice to the surety. If the defendant fails to appear, the surety has by statute ninety (90) days in which to produce him. Of course, the court may for good cause shown set aside in whole or part a forfeiture, but the burden of demonstrating the good cause is upon the surety. Md. Rule 777 g.

This Court, in Irwin v. State, 17 Md.App. 518, 302 A.2d 688 (1973), stated that the purpose of forfeiture is not to punish the surety or to enrich the coffers of the State but rather to assure that the defendant will be found and brought to trial. In short, forfeiture is an incentive to the surety to see that his principal is present at trial. Irwin has no application to the instant case. Patently, if Allegheny did not know, as it says, of the forfeiture, it certainly did not have incentive to act to produce the defendant. That the defendants in the twelve cases involved in this appeal were ultimately located and tried was not because of any act on the part of Allegheny. Indeed, Allegheny seems to have been content to post the bonds and then forget the whole thing. It was only when called to make good the bonds that they awakened to what had occurred.

We think it the duty of the surety, be it corporate or individual, to follow the case on the docket and to keep itself abreast of the proceedings. We know of no rule of court or statute that requires the surety to be placed on notice by the court or clerk before the ninety-day grace period begins to run. As we see it, the surety has...