Maryland Nat. Ins. Co. v. District Court of Oklahoma County

• Decision Date: 15 April 1969
• Docket Number: 43437,Nos. 43342,s. 43342
• Citation: 455 P.2d 690
• Court: Oklahoma Supreme Court
• Parties: MARYLAND NATIONAL INSURANCE COMPANY, a Corporation, and James E. Mason, Petitioners, v. The DISTRICT COURT OF OKLAHOMA COUNTY, State of Oklahoma, and A. P. Van Meter, District Judge, Respondents. MARYLAND NATIONAL INSURANCE COMPANY, a Corporation, and Carl Brooks, Petitioners, v. The DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF OKLAHOMA COUNTY, State of Oklahoma, and Jack R. Parr, et al., Respondents.

Page 690

455 P.2d 690

MARYLAND NATIONAL INSURANCE COMPANY, a Corporation, and James E. Mason, Petitioners, v. The DISTRICT COURT OF OKLAHOMA COUNTY, State of Oklahoma,

and A. P. Van Meter, District Judge, Respondents.

MARYLAND NATIONAL INSURANCE COMPANY, a Corporation, and Carl

Brooks, Petitioners,

v.

The DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF

OKLAHOMA COUNTY, State of Oklahoma, and Jack R.

Parr, et al., Respondents.

Nos. 43342, 43437.

Supreme Court of Oklahoma.

April 15, 1969.

Rehearings Denied July 1, 1969.

Syllabus by the Court

1. The right to trial by jury, declared inviolate by Article II, Section 19, of the Constitution of Oklahoma, except as modified by the Constitution itself, has reference to the right as it existed in the territories at the time of the adoption of the Constitution, and the right to a jury trial therein referred to was not predicated upon the statutes existing in the territories at that time, but the right as guaranteed under the United States Constitution and according to the course of the common law.

2. At the common law, the surety on a forfeited bail bond in a criminal case was not entitled to a jury trial at any stage of the proceedings except in cases where, for any reason, it was necessary to bring an ordinary common law action of debt upon the forfeited recognizance.

Original proceedings in this court in which petitioners, surety bondsmen and insuror upon forfeited bail bonds in criminal cases, ask this court to assume original jurisdiction and issue writs of prohibition against the respondents, District Court of Oklahoma County and some of the judges thereof. Applications to assume original jurisdiction granted; petitions for writs of prohibition denied.

Forest N. Simon, Martin & Kisner, Oklahoma City, for petitioners.

Curtis P. Harris, Dist. Atty., D. K. Cunningham, Asst. Dist. Atty., Oklahoma City, for respondents.

JACKSON, Justice.

These two related original proceedings raise questions of first impression concerning the constitutionality of the bail bond forfeiture provisions of an act of the 1965 Legislature, now codified as 59 O.S.1968 Supp., Sections 1301 through 1340, as they affect the liability of the surety upon the bond. Because of the public nature of the questions presented, we have decided to grant petitioners' Applications to Assume Original Jurisdiction in order to consider their Petitions for Writ of Prohibition.

Prior to the adoption of the 1965 act, the rights of sureties on bail bonds as regards forfeiture were determined under 22 O.S.1961, Section 1108, which provided, among other things, that 'After the forfeiture, the county attorney must proceed with all due diligence, by action against the bail upon the instrument so forfeited.' Under well settled law, this section required the county attorney to file an ordinary civil action on the forfeited bond. Since no special procedure was provided, the general rules of civil procedure were applicable, including the requirement of 12 O.S.1961, Sec. 556, that '* * * Issues of fact arising in actions for the recovery of money * * * shall be tried by a jury, unless a jury trial is waived * * *'.

The act of the 1965 Legislature, 59 O.S.1965 Supp., Sec. 1301 et seq., provides special procedure for enforcing the liability of the surety on the bond which does not include a jury trial. This is the basis of petitioners' chief complaint in the proceedings now before us.

Briefly summarized, the pertinent portions of the new statute provide (Sec. 1330) that in the event of a breach of the undertaking, the court shall declare the undertaking forfeited and direct a copy of the order to the Insurance Commissioner, who shall 'give notice' by mailing a copy thereof to the surety bondsman and his insurer, directing them to make a deposit in the face amount of the bond within 30 days; (Sec. 1332) that the bondsman shall be notified also by the trial court that he may, within 30 days, file a motion to vacate the forfeiture, stating the grounds therefor, and that if such motion is not filed, the forfeiture 'shall become a final judgment and the clerk shall immediately issue execution upon the undertaking in accordance with law'. The last sentence of Sec. 1330 also provides in effect that the 'bail bondsman or the insurer' shall have at least ten days' notice of the required appearance of the defendant in the criminal case. Sec. 1333 provides that 'All liability of the bondsman may be enforced on motion without necessity of an independent action If conformance with the foregoing is shown' (emphasis supplied).

It is unnecessary to notice the undisputed facts in these cases except to say that under petitioners' own allegations, full and complete 'conformance with the foregoing' was shown, including the giving of both 30 day notices and the 10 day notice referred to in the paragraph above. No motions to vacate the forfeitures were filed. Executions have been issued pursuant to Sec. 1332 and we are asked to prohibit the trial judges from proceeding further in the cases insofar as the collection of money from petitioners is concerned.

In the briefs, petitioners argue that the new statute unconstitutionally denied them the right to a jury trial, and violates due process and equal protection clauses of both state and federal constitutions.

We first consider the question of petitioners' right to a jury trial. In 1921, in Keeter v. State ex rel. Saye, 82 Okl. 89, 198 P. 866, 17 A.L.R. 557, this court gave exhaustive consideration to the question of the jury trial guarantees of our own Constitution, in the face of prior holdings not in harmony, and held:

'The right to trial by jury, declared inviolate by section 19, art. 2, of the Constitution of Oklahoma, except as modified by the Constitution itself, has reference to the right as it existed in the territories at the time of the adoption of the Constitution, and the right to a jury trial therein referred to was not predicated upon the statutes existing in the territories at that time, but the right as guaranteed under the federal Constitution and according to the course of the common law.'

Thus, although it is well settled that the jury trial guarantees of the Seventh Amendment of the United States Constitution have not been considered directly applicable to trials in state courts, 31 Am.Jur. Jury, Section 9, the same result is reached by virtue of Art. 2, Section 19, of our own Constitution, and the above quoted rule. It is equally well settled that the right of trial by jury 'preserved' by the United States Constitution is the right as it existed at common law, 31 Am.Jur. Jury, Sec. 12. Therefore, the question for decision is whether the petitioners in these proceedings, obligors on bail bonds in criminal cases, would have been entitled to jury trials as a matter of right at the common law.

We note at the outset that under Rule 46(f) of the Federal Rules of Criminal Procedure, the liability of the obligors on a bail bond in a criminal case in the federal courts may be enforced on motion without a jury trial. Since this rule was promulgated by the United States Supreme Court itself under authority granted by the Act of Congress of June 29, 1940, c. 445, 54 Stat. 688, it could reasonably be said to constitute at least inferential authority for the proposition that the obligors had no constitutional right under the United States Constitution to a jury trial. Perhaps for this reason, we have been unable to find any case in which the United States Supreme Court has passed directly upon the question before us.

No prior decisions of this court precisely in point have been cited, and our own research has disclosed none. This is not surprising, in view of the fact that until 1965, the jury trial requirements of our code of civil procedure were applicable in proceedings of enforce the liability of a bail bondsman, and it was not necessary to examine constitutional guarantees on this question.

The holdings of the courts of other, and older, jurisdictions are therefore helpful on this point. In 1874, in People of the State of New York v. Quigg, 59 N.Y. 83, the Court of Appeals of New York considered a statute enacted in 1844 which provided for summary judgments, without the intervention of a jury, upon forfeited recognizances. The appeal in that case was from an order of the trial court denying the motion of Quigg, a bail bond bondsman, to vacate the summary judgment entered against him on the forfeited bond. It was argued, among other things, that the statute denied him the right to trial by jury as guaranteed in state and federal constitutions. The court said:

'* * * The right to a trial by jury, if any such right would have existed but for the special laws affecting the obligations and liability of the defendants, was waived by the terms of the recognizances and assent of the cognizors * * *. But the proceedings for judgment were not suits at common law, but a special statutory proceeding, summary in its character and unknown to the common law, and therefore not within the provision of the federal Constitution invoked by defendants. * * * 'In actions upon recognizances, the trial was at common law by the record, and by the court and not a jury, and even in actions upon recognizances an issue upon the existence of the recognizance as well as the forfeiture were not triable by a jury.'

In that case, the New York Court of Appeals referred with approval to an earlier (1850) case in the Supreme Court of New York, Gildersleeve and Roberts v. People, 10 Barb. 35, which had considered the same 1844 act. In that case, the court said:

'A recognizance is an acknowledgment of a debt, and when filed in a court of record is a matter of record. At common law it bound the lands of the conusor and an execution might be issued upon it as upon a judgment. * * * It was not necessary to bring an action upon the recognizance, because there was nothing to be tried. The recognizance...