State v. Fidelity & Deposit Co. of Maryland

• Decision Date: 25 March 1925
• Docket Number: 18928.
• Citation: 133 Wash. 565,234 P. 274
• Court: Washington Supreme Court
• Parties: STATE v. FIDELITY & DEPOSIT CO. OF MARYLAND.

234 P. 274

133 Wash. 565

STATE v. FIDELITY & DEPOSIT CO. OF MARYLAND.

No. 18928.

Supreme Court of Washington

March 25, 1925

Department 2.

Appeal from Superior Court, Lincoln County; Sessions, Judge.

H. J Shepard was charged by information with crime of grand larceny, which charge was dismissed for want of prosecution. Thereafter new information was filed by leave of court charging same offense, and called for trial without notice to defendant or his attorney, at which trial bail was declared forfeited and judgment entered against the Fidelity & Deposit Company of Maryland, surety on bail bond. From a denial of the motion to vacate such judgment, the surety appeals. Reversed.

Danson Williams, Danson & Lowe, and Harris Baldwin, all of Spokane for appellant.

Roy C. Fox, of Davenport, for the State.

MACKINTOSH J.

Appellant furnished a bail bond for the defendant, who, in November, 1922, was charged by information with the crime of grand larceny. On February 2, 1924, defendant moved for a dismissal of the prosecution for the reason that he had not been brought to trial within 60 days after the filing of the information. This motion was heard and granted by the court on February 13, 1924, the following order being entered:

'It is therefore ordered, adjudged and decreed by the court that the above-entitled action be and the same is hereby dismissed.'

On February 18th, by leave of the court, a new information charging the same crime against the defendant was filed. On February 19th, being the date on which the trial of the original action had been set, and without notice to either the defendant or his attorney and without their knowledge that a new information had been filed, it was called for trial, and, no one appearing but the state, motion was made for a forfeiture of the bond, which motion was granted and judgment was entered against the appellant for the sum of $1,000, being the penalty on the bond. March 20th the appellant, learning of the judgment, moved to have it vacated for the reason that it was void. This motion was denied, whereupon this appeal was taken.

Without noticing all the reasons presented by the appellant for reversal of the judgment, it is enough to consider but one of them which must determine this action in appellant's favor. When the motion was granted on February 13th the action was terminated, and this of itself terminated the surety's liability. Section 2313, Rem. Comp. Stat., reads:

'Whenever the court shall direct any criminal prosecution to be dismissed, the

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