Pavach v. State, 870A134

• Decision Date: 02 August 1971
• Docket Number: No. 870A134,No. 1,870A134,1
• Citation: 271 N.E.2d 896,149 Ind.App. 293
• Parties: Anthony R. PAVACH, Appellant, v. STATE of Indiana, Appellee
• Court: Indiana Appellate Court

Page 896

271 N.E.2d 896

149 Ind.App. 293

Anthony R. PAVACH, Appellant, v. STATE of Indiana, Appellee.

No. 870A134.

Appellate Court of Indiana, Division No. 1.

Aug. 2, 1971.

Thomas E. Alsip, Butler, Brown & Hahn, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Deputy Atty. Gen., for appellee.

LOWDERMILK, Judge.

The question presented in this appeal is whether or not the trial court erred in forfeiting a recognizance bond executed in behalf of one Marvin Hutcherson, who had been indicted by the Marion County Grand Jury on December 31, 1968. The indictment was under the Offenses Against Property Act and was assigned to Division 2 of the Criminal Court of Marion County. The defendant appeared by counsel, surety bond was filed and a number of continuances were had and the matter was set for trial. The defendant did not appear for trial and the surety bond was ordered forfeited.

The petition to set aside the forfeiture was filed by Anthony R. Pavach, appellant, attorney in fact for the Allegheny Mutual Surety Company, which had given the bond in the principal amount of $1,000, and which had later been ordered forfeited. At no place in the pleadings does the appellant allege his connection with the surety company.

Evidence was submitted and heard to the effect that the defendant, Marvin Hutcherson, was incarcerated in another jurisdiction, namely, Lewisburg, Tennessee, on a similar charge.

The motion to correct errors was filed on behalf of the surety company and the bondsman and was subsequently overruled.

Judgment was entered on the forfeiture on June 16, 1970, which, omitting the formal parts, reads as follows:

'The surety herein, ALLEGHENY MUTUAL ANTHONY PAVACH, having failed to produce said defendant MARVIN HUTCHERSON within ten (10) days after the mailing by the Clerk to said surety of a notice to so do, which notice and the proof of the mailing thereof are in the words and figures following:

(H.I.): and the court having heard the evidence and being now duly and sufficiently advised in the premises, enters judgment as follow:

'It is therefore considered, ordered and adjudged by the Court that the State of Indiana have and recover of and from the above named ALLEGHENY MUTUAL, the surety on the Recognizance Bond of the defendant in the above entitled cause the sum of One Thousand Dollars _ _, ($1000.00), together with the costs and charges in said cause taxed in the sum of $2.20.

'DATED June 16, 1970.'

The defendant, Hutcherson, by counsel, did, on March 17, 1969, file written waiver of jury and moved for a continuance. This was granted and additional continuances were granted on May 19, 1969 and July 7, 1969. The surety bond which is the subject of this appeal was filed on July 9, 1969. At the time of the filing of the bond the trial had previously been set by the court on September 5, 1969.

On August 29, 1969, the same being six days prior to the trial date, an unverified motion for a continuance, executed by Marvin Hutcherson, was filed, with the same showing Morris D. Pleak, 1017 Peoples Bank Building, Indianapolis, as his attorney. The record is moot as to the granting or not granting of this motion.

We must assume that the trial date was continued, for on October 9, 1969, a further unverified motion for continuance, executed by Marvin Hutcherson, was filed and appeared to have been prepared by attorney Pleak. This motion was granted.

On December 17, 1969, the trial court entered its order of forfeiture on the bond and ordered the Clerk to mail notices provided by law. Surety, Allegheny Mutual, collectively and individually, and its agent, Anthony R. Pavach, collectively and individually, were thereby suspended from signing any bonds in the court until the judgment is paid or the defendant produced in open court, or until further order of the court. The Clerk was ordered to send copy of this statutory notice to the surety and its agent. A rearrest warrant was issued and bond set at $10,000.

Following issuance of the statutory notice the re-arrest warrant was issued and actually sent to the Marshall County Jail in Lewisburg, Tennessee.

The plaintiff-appellant, Anthony R. Pavach, who was the surety bondsman, filed a petition to set aside the bond forfeiture on January 8, 1970. Following a praecipe for trial the matter of the forfeiture was set for hearing on January 29, 1970. Evidence was heard and the petition to set aside the forfeiture was denied. The evidence consisted of a certificate of incarceration of Marvin Hutcherson by James T. Harber, Sheriff of Marshall County, Tennessee, and which was admitted into evidence without objection.

The affidavit stated that the Sheriff of Marshall County, Tennessee, had Marvin Richard Hutcherson incarcerated in the County Jail and Hutcherson was committed to his custody on August 24, 1969 and remained continuously in his jail or other facility provided by law since that time and that he was awaiting trial there, which trial was scheduled for February 23, 1970.

The motions filed on August 29, 1969 and October 9, 1969, both conflict with the affidavit of the Sheriff of Marshall County, Tennessee, that Marvin Hutcherson was in jail there, as each of the motions for continuance were filed in the trial court in Indiana with each stating that Hutcherson desired a continuance of his trial for the reason that his attorney was ill on August 29th and his attorney's illness continued through October 9th.

The question the trial court necessarily passed upon was the whereabouts of Marvin Hutcherson when he signed the motions and inasmuch as they were prepared by a lawyer the court was confronted with the problem of the motions not being verified and showing Hutcherson's incarceration out of the State of Indiana.

On March 26, 1970, the motion to correct errors was filed by Anthony R. Pavach, appellant herein, which motion was overruled on May 8, 1970, with judgment on the forfeiture being entered June 16, 1970, and with this appeal following.

It is appellant's contention that the judgment of forfeiture on the bond is an appealable judgment and the proper person is bringing the appeal and there is a relevant statute that has been disregarded by the trial court. Appellant further contends the aggrieved party is the bondsman and it is he who is seeking relief.

Appellant contends there is evidence in the record that the defendant was incarcerated at the time of the forfeiture in another jurisdiction; and that forfeiture under these conditions contravenes the statute which prohibits forfeiture when the defendant is incarcerated in another jurisdiction. The statute relied upon reads are follows:

'Burns' Indiana Statutes Anno. 9-3733b, I.C.1971, 35-4-5-12. Forfeiture of bond--Recovery on bond--Revocation of license--Duty of clerk and sheriff.--In case, the defendant shall not appear as provided in the bond, the court shall thereupon declare the bond forfeited and the clerk shall mail notice of such forfeiture to the addresses indicated in the bonds, and if the bondsmen do not produce the defendant or prove that the appearance of the defendant was prevented by illness, or by the death of a defendant, or the trial defendant was being held in custody of the United States, a state or a political subdivision thereof, or if required notice was not given within one-hundred eighty (180) days after such mailing and pay all costs and satisfy the court that defendant's absence was not with the consent or connivance of the sureties, the court shall at once enter judgment, without pleadings and without change of judge or change of venue, against the bondsmen for the amount of the bond and the clerk shall at once record the judgment. Any proceedings relative to said bond, or its forfeiture, judgment, execution of judgment, or stay of proceedings shall be in the court in which the bond was posted. * * *'

Appellant further contends that there was sufficient evidence in the record at the hearing to set aside the forfeiture, that the defendant was in custody. That evidence is in the records and consists of a verified pleading and a certificate of incarceration, which were admitted without objection by the State and became a part of the record on appeal. Appellant also contends in his argument that there is no evidence that the defendant was in the jurisdiction of the Marion Criminal Court, Division 2, at the time of the forfeiture or any time prior thereto after July 9, 1969.

For the above reasons appellant contends the judgment of the trial court is not sustained by the evidence and is contrary to law. Appellant further charges that the judgment was predicated on a false entry in the record of the court, which the appellant bondsman made every effort to correct and which alleged false entry is set out in detail in appellant's motion to correct errors and which motion to correct errors reads as follows, to-wit:

'The defendant moves that the verdict of the Court in this cause, denying petition of bondsman to set aside forfeiture, be itself set aside, and that judgment entered on said petition be set aside, and that a judgment or new trial be granted to the petitioner-bondsman, for each and all of the following reasons:

'1. That the judgment of the Court is against the weight of the evidence.

'2. That the judgment of the Court is predicated upon a false entry of the Court, and upon the supposition of the Court, as set forth in the transcript, that the defendant, Marvin Hutcherson signed and filed a written motion for continuance in this cause on August 29, 1969, and again on October 9, 1969, when in truth and fact Marvin Hutcherson did not appear in court on the filing of said motion for continuance on either occasion, that his name was signed to said motion for continuance by his mother and said motion was filed by a secretary for counsel for defendant, and that said Court's record, if in truth and fact said Court's record indicated an...