State ex rel. Smith v. Western Sur. Co., 33048

• Decision Date: 30 November 1951
• Docket Number: No. 33048,33048
• Parties: STATE et rel. SMITH, Co. Atty. v. WESTERN SURETY CO.
• Court: Nebraska Supreme Court

Page 100

50 N.W.2d 100

154 Neb. 895

STATE et rel. SMITH, Co. Atty. v. WESTERN SURETY CO.

No. 33048.

Supreme Court of Nebraska.

Nov. 30, 1951.

Syllabus by the Court.

1. The object of bail in a criminal case is to relieve the accused of imprisonment before his trial; to save the county the expense incident to his confinement before trial; and to insure his attendance to answer the charge against him and that he will abide the judgment of the court.

2. If the surety on a bail bond fails to deliver his principal into the custody of the proper officer of the law, or to procure his attendance in court, as the bond requires, the liability of the surety for the penalty of the bond becomes absolute and the bond should be forfeited.

3. After default in performance of the conditions as a recognizance, the proper court may exercise its discretion and remit or reduce the penalty thereof according to the circumstances of the case and the situation of the accused, upon such terms and conditions as are just and reasonable.

4. The court in which a judgment has been rendered for the penalty of a forfeited bail bond has power to remit or reduce the amount of the judgment only when it is shown that after the rendition of the judgment the accused has been arrested and surrendered to the proper court for trial of the charge against him because of which the bond was furnished.

Casey & Chovanec, Plattsmouth, for appellant.

Richard C. Peck, James F. Begley, Plattsmouth, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, J.

John Daniel Brandon, Jr. was accused by complaint filed in the county court of Cass County of feloniously and illegally having in his possession a forged instrument with intent to utter and use it to the damage and prejudice of other persons with full knowledge that it was false and forged. He waived preliminary hearing, was ordered to appear in the district court to answer the charge, and was committed to jail in default of bail in the sum of $1,500.00. He later furnished bail as required by the court with appellant as surety and was released from the county jail. The condition of the bond was that he appear in the district court for Cass County from day to day and from term to term, until final judgment in the case or until he was finally discharged, to answer the charge made against him and to receive and abide the judgment of the court and not depart thereof without leave. He did not appear thereafter in the district court and at the time the case was set for trial an order of forfeiture of the bond was entered by the court. This suit seeks recovery of the penalty of the bond from appellant.

The petition alleged the matters above stated and asked judgment for $1,500.00, with interest at legal rate from the date the case was assigned for trial. Appellant admitted it executed the bond described in the petition and denied all other allegations thereof. The trial resulted in a directed verdict for appellee and a judgment entered thereon. The appeal is from the judgment and an order disallowing the motion of appellant for a new trial.

The evidence produced by appellee sustained each element of the cause of action alleged. The appellant did not attempt to controvert any part of the evidence of appellee and there was no offer of proof by it of any matter responsive to any issue in the case. The facts in reference to the efforts of appellant to locate, apprehend, and produce the accused in court for trial, as the bond obligated it to do, were immaterial to any issue of the case. The answer was an admission of the execution of the bond by appellant and a denial. There was no offer of proof by appellant that any of the conditions of the bond were performed by it or of any fact that would operate as a discharge of the surety.

It is provided by statute that when any person under recognizance in a criminal prosecution fails to perform the conditions of it, his default shall be recorded and the recognizance forfeited, and when it has been forfeited it is made the duty of the prosecuting attorney of the county in which it was taken to prosecute a civil action for the penalty of the bond. Secs. 29-1101 and 29-1102, R.R.S.1943.

In Bartling v. State, 67 Neb. 637, 93 N.W. 1047, 1049, 97 N.W. 443, this court said: 'We think that a surety on a recognizance must take notice of the obligations imposed upon him by the law providing for such recognizance; that the object of the recognizance in a criminal proceeding is to secure the presence of the accused at the next term of court actually held after such recognizance has been entered into and approved; and that when the surety fails to either deliver his principal into the custody of the proper officers of the law or to procure his attendance at a term of court actually held, his liability upon the recognizance becomes absolute.'

In King v. State, 18 Neb. 375, 25 N.W. 519, 526, it is said: 'It is next insisted that the surety was exonerated by operation of law by the imprisonment of Greek on a charge of felony in the state of...