City of Westwood v. Holland

• Decision Date: 14 July 1964
• Docket Number: No. 43663,43663
• Citation: 394 P.2d 56,193 Kan. 375
• Parties: CITY OF WESTWOOD, Appellant, v. O. L. HOLLAND, d/b/a Johnson County Bonding Company, Appellee.
• Court: Kansas Supreme Court

Page 56

394 P.2d 56

193 Kan. 375

CITY OF WESTWOOD, Appellant, v. O. L. HOLLAND, d/b/a Johnson County Bonding Company, Appellee.

No. 43663.

Supreme Court of Kansas.

July 14, 1964.

Syllabus by the Court

An action to collect on a forfeited criminal bond in civil in nature and such collection cannot be enforced against a surety in a criminal proceeding by arrest and imprisonment.

Kenith R. Howard, Jr., Mission, argued the cause, and Farle D. Jones, Mission, was with him on the briefs for the appellant.

W. C. Jones, Olathe, argued the cause, and Howard E. Payne, and H. Thomas Payne, Olathe, were with him on the briefs for the appellee.

PARKER, Chief Justice.

This is an appeal from an order of the district court quashing a criminal proceeding, filed in a police court against a surety, to collect on a recognizance bond.

Due to the limited nature of the issue involved the facts may be highly summarized.

O. L. Holland signed as surety on the recognizance of one Lawrence Cox in the case of the City of Westwood v. Lawrence Cox in the police court of Westwood, Kansas, a city of the third class. Cox who was charged with a traffic violation, did not appear at the appointed time for trial and the police judge declared a forfeiture on the bond and recognizance. Subsequently demand was made upon Holland for payment on the bond which was refused. Thereafter a complaint was filed by the mayor of the city in the police court of Westwood against Holland for unlawfully refusing to pay a debt of $198.00 owed to the city under the bond by virtue of the failure of Cox to appear in police court.

A summons and a warrant were issued on the complaint and Holland was placed under arrest. He gave an appearance bond and was released from custody. On the day the complaint was set for trial Holland appeared with his attorney and filed a motion to quash or strike the proceedings. This motion was overruled by the police judge.

Thereupon Holland was asked to enter a plea to the charge set forth in the complaint. He elected to stand mute and a plea of not guilty was entered by the court. The case then proceeded to trial. The original recognizance bond and testimony of the chief of police was received in evidence.

The record in the police court reads in part:

'Thereupon, the judgment of the court was rendered, the defendant was found to be indebted to the City of Westwood, Kansas, in the amount of $198 and was ordered to pay said sum to the City. In addition, the defendant was charged and ordered to pay court costs of $1.'

An appeal bond was set at $400 and Holland was released from custody.

Holland then perfected an appeal to the district court which entered an order quashing the proceeding. Pertinent portions of that order read:

'That the defendant's motion to strike or quash the proceedings should be sustained for the reason that the same is an attempt to enforce civil liability by use of criminal procedure, and that the Police Court of the City of Westwood, Kansas, is without jurisdiction to render the judgment on file herein * * *'

The City of Westwood appealed from the foregoing order of the district court and in doing so has attempted to reserve several questions for review, only one of which is properly reviewable in this court under the procedure taken in the police court. That question may be simply stated, Is the collection of a forfeiture recognizance only civil in nature?

If the question just stated is answered in the affirmative, which we are convinced it must be, the entire action before the police judge to collect on the forfeiture by criminal procedure is void and there is nothing further for review.

A proceeding to forfeit bail, although it originates with a criminal action, is civil in nature as it does not involve the guilt or innocence or the conviction or acquittal of any person. Bail had nothing to do with the trial or punishment of the accused. Nor does the fact that a defendant accused of a crime has jumped bail make a criminal of the surety on his recognizance bond. The general rule is stated in 6 Am.Jur., Bail and Recognizance, § 210, p. 152, as follows:

'It is well settled that an action by the state or Federal government on a criminal bail bond is civil, and not criminal, in its nature. The action does not involve the guilt or innocence, conviction or acquittal, of any person; though it may be a proceeding arising in a criminal case, it is in no sense a continuation of the criminal proceedings in which the bail bond was given. Hence, the procedural rules governing civil actions generally, and appeals or writs of error,...