People v. Pavlak, Docket No. 77-1926
| Decision Date | 11 August 1980 |
| Docket Number | Docket No. 77-1926 |
| Citation | 99 Mich.App. 190,297 N.W.2d 878 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Anthony PAVLAK, Defendant. In re INTERNATIONAL FIDELITY INSURANCE COMPANY, a foreign Corporation, Surety-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Norman L. Zemke, Southfield, for surety-appellant.
William B. McIntyre, Jr., Detroit, for plaintiff-appellee.
Before MAHER, P. J., and CAVANAGH and CYNAR, JJ.
The appellant herein is a corporate surety which posted a $1,000 criminal bail bond in Detroit Recorder's Court to secure the appearance of the defendant, Michael Pavlak. When Pavlak failed to appear for sentencing on September 13, 1976, his bond was forfeited and canceled and a capias was issued for his arrest.
On October 7, 1976, the defendant was stopped for a minor traffic violation, and a LEIN check disclosed his fugitive status. He was taken into custody in connection with the still-pending criminal case. On that same date, the surety had voluntarily paid the $1,000 face value of the bond into the court, foregoing the requirement of M.C.L. § 765.28; M.S.A. § 28.915 and People v. Person, 44 Mich.App. 630, 205 N.W.2d 610 (1973), that the prosecutor first obtain a judgment for the bond forfeiture.
A few days after defendant was apprehended, the appellant moved to have the forfeiture set aside and for reinstatement of the bond and reimbursement of the $1,000 which had previously been paid. The prosecutor was served in accordance with then-current practice in Recorder's Court. The prosecutor did not oppose the petition for reinstatement. At a hearing held October 21, 1976, the trial court reinstated the bond and ordered that the $1,000 forfeiture be remitted to the surety on condition that the surety first release its collateral and pay $200 in court costs. The surety complied with these preconditions. Subsequently, the Wayne County Board of Auditors refused to remit the $1,000, claiming that the surety's petition for reinstatement of the bond should have been served on the County Corporation Counsel rather than on the prosecutor and was therefore inadequate. 1
The trial judge heard argument on the issue of service, then set aside its prior order of reinstatement. The trial judge stated to the appellant surety that if it filed again for reinstatement and served the corporation counsel, the return of the $1,000 would, in the trial court's view, be mandated.
Appellant filed and served a new petition for remission. At this time, the trial court denied the petition, based upon People v. Johnson, 72 Mich.App. 702, 250 N.W.2d 508 (1976). Although the trial judge recognized that the surety had been prejudiced by his inconsistent rulings in that it had released its collateral and had paid $200 in court costs, he said that under People v. Johnson supra, he had no authority to remit forfeitures to corporate sureties.
The statute governing the remission of bond forfeitures, M.C.L. § 765.15; M.S.A. § 28.902, provides as follows:
"Sec. 15. (a) If such bond or bail be forfeited, the court shall enter an order upon its records directing, within 45 days of the order, the disposition of such cash, check or security, and the treasurer or clerk, upon presentation of a certified copy of such order, shall make disposition thereof.
The court shall set aside the forfeiture and discharge the bail or bond within 1 year from the time of the forfeiture judgment, in accordance with subsection (b) of this section if the person who forfeited bond or bail is apprehended and the ends of justice have not been thwarted and the county has been repaid its costs for apprehending the person.
In People v. Tom Johnson, supra, a panel of this Court held that the term "security" in M.C.L. § 765.15 applies solely to such negotiable securities as are permitted to be filed in lieu of bond or bail under M.C.L. § 765.12; M.S.A. § 28.899. 2 The basis for distinction between the deposit and the corporate surety bond was explained thusly, 72 Mich.App. 702, 708, 250 N.W.2d 508:
We find the reasoning of People v. Tom Johnson unpersuasive and do not see any basis for the distinction in treatment between deposit bail and a bond posted by a corporate surety. M.C.L. § 765.6; M.S.A. § 28.893 expressly provides that the amount of bail shall be uniform whether the bond is executed by the accused or by a surety. M.C.L. § 765.12; M.S.A. § 28.899 allows the deposit of cash, certified checks, etc., in an amount equal to the bond or bail which is required, and "in lieu thereof". The obvious legislative intent behind these provisions is that both sorts of bail should be treated similarly. Common sense, and fidelity to the Legislature's apparent intent, would dictate that bonds which are to be treated alike should be treated alike for all purposes, including remission of forfeitures.
Furthermore, in People v. Judge of Recorder's Court, 23 Mich.App. 126, 128, 178 N.W.2d 146 (1970), this Court stated:
A corporate surety is permitted to post bond through a recognizance, rather than by the deposit of a cash, check or other negotiable security, because the sufficiency of its assets, and thus its ability to pay, have previously been determined by the Commissioner of Insurance. M.C.L. §§ 500.103-500.104; M.S.A. §§ 24.243-24.244. Therefore, a corporate surety provides the People with the same degree of financial security in connection with a recognizance as does the deposit of a negotiable security. In our opinion, the issue of entitlement to interest on an interest-bearing security is irrelevant in construing the statute on the remission of forfeitures, especially since the securities in question need not be interest-bearing instruments.
It is well-settled that the liability of a surety is coextensive with the liability of a principal on a bond and cannot be extended any farther. 74 Am.Jur.2d Suretyship § 104, p. 76, In re MacDonald Estate, 341 Mich. 382, 67 N.W.2d 227 (1954). In other words, a surety stands in the shoes of its principal. If a defendant in a criminal case had posted $1,000 of his own funds as bail, this $1,000, less costs, would have been returned to him upon his rearrest and sentencing. But if we were to adhere to the analysis and the holding of People v. Johnson, supra, the surety...
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...court." M.C.L. Sec. 765.15; M.S.A. Sec. 28.902. (Emphasis added.) In arguing that Sec. 15 applied, Kozy relied on People v. Pavlak, 99 Mich.App. 190, 297 N.W.2d 878 (1980). The Court in Pavlak disagreed with a decision of another panel of the Court of Appeals which held that Sec. 15 did not......
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