State v. Indemnity Ins. Co. of North America, 54727
| Decision Date | 10 November 1983 |
| Docket Number | No. 54727,54727 |
| Citation | 672 P.2d 251,9 Kan.App.2d 53 |
| Parties | STATE of Kansas, Appellee, v. INDEMNITY INSURANCE CO. OF NORTH AMERICA, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. An appearance bond or recognizance is a contract between the principal and surety on the one hand and the State on the other. Under ordinary rules of suretyship, an agreement between the obligee (the State) and the principal which alters the terms of the obligation without the consent of the surety operates to discharge the surety.
2. It is the responsibility of the bail (surety) to know the whereabouts of the defendant, to watch the court's calendar, and to see to it that the defendant appears as ordered.
3. Under K.S.A. 22-2807, the decision to set aside a bond forfeiture is left to the discretion of the trial judge, and the test to be applied is whether or not justice requires enforcement of the forfeiture.
4. In an appeal from a judgment on a forfeited appearance bond it is held: (a) the filing of additional charges against the defendant did not relieve the surety from liability on the bond, and (b) the trial court did not abuse its discretion in refusing to set aside the bond forfeiture.
Ronald P. Wood, of Hines, Wood & Ahlquist, Erie, for appellant.
Edwin H. Bideau, III, County Atty., and Robert T. Stephan, Atty. Gen., for appellee.
Before FOTH, C.J., and SWINEHART and MEYER, JJ.
This is an appeal by the corporate surety on a criminal appearance bond from a judgment against it after forfeiture of the bond. Appellant contends it should have been relieved of liability on the bond because after the bond was given the State filed additional charges against the defendant-principal without notice to the surety, thereby increasing the surety's risk. We disagree and affirm.
On September 14, 1981, Roger D. Davis was charged with aggravated assault in Neosho district court. It was charged that he threatened the victim "with the intent to commit a felony, to wit: Rape ...." Bond was set at $5,000. On September 15, he applied for bond with August Rua who was an agent for the appellant Indemnity Insurance Company of North America. Rua issued the bond and charged Davis a premium of $500. The bond was a "continuing bond" conditioned that the defendant "shall personally be and appear before the Judge of the District Court on the 21 day of Sept., 1981, at 1:30 P.M., and remain in attendance from day to day and time to time, as the case may be continued or remain undisposed of to answer a charge of Aggravated Assault, and not depart without leave, and abide by the judgment of the court in the premises ...."
Davis first appeared on the aggravated assault charge on September 21, 1981, when the case was continued to October 5. On the latter date it was again continued to November 2.
On October 30, 1981, the complaint was amended to add to the count of aggravated assault three additional counts: rape, kidnapping, and unlawful restraint. A copy of the amended complaint was furnished to defense counsel, and on November 2, 1981, Davis appeared and proceeded with the preliminary hearing without objection. He was bound over for trial on the three felony counts together with the misdemeanor count. At his request no additional bond was required.
An information was filed November 3, containing the original charge of aggravated assault plus the three additional counts. Davis appeared for arraignment that day and pleaded not guilty. On January 5, 1982, the case was set for pretrial motions. Davis failed to appear and a bond forfeiture and bench warrant were ordered. The warrant was later recalled and the forfeiture was set aside on January 11, when Davis did appear and show that he had been undergoing medical treatment on January 5. A continuance was granted on Davis's motion and the case was set for trial on March 23, 1982.
Pretrial motions were set for hearing on March 11 and March 16, 1982. Davis failed to appear at either hearing and failed to appear on the trial date, March 23, 1982. On that date the court ordered the bond forfeited again and a new bench warrant issued. Davis has not been heard from since.
The Neosho county attorney moved for judgment on the bond and the surety filed a motion to have the forfeiture set aside. A hearing was held on June 7, 1982. At the conclusion of the hearing, the trial court ruled that a judgment of default ought to be entered against the surety and denied the surety's motion to set aside the bond forfeiture. The surety appeals.
Neither side cites us a case directly in point. The surety's primary cases are Reese v. United States, 76 U.S. (9 Wall.) 13, 19 L.Ed. 541 (1869); Continental Casualty Company v. United States, 337 F.2d 602 (1st Cir.1964); and United States v. D'Anna, 487 F.2d 899 (6th Cir.1973). In Reese the bond was given for appearance at the next term of court and at any subsequent term. The Court construed this to mean from term to term until the case was disposed of. When the trial court continued the case generally until such time as companion civil litigation might be disposed of--which might well be years later--it unilaterally altered the terms of the recognizance and released the surety. It did the same thing when it authorized the defendant to go to Mexico where he was beyond the reach of the bail if they wished to arrest and surrender him.
In Continental Casualty, the trial court permitted the defendant to leave the country on business. The court recognized that under Reese this would relieve the surety if done without its knowledge or consent. However, since the surety's agent was in the courtroom at the time the permission was granted, and the bond was executed thereafter, the surety remained bound and the bond forfeiture was upheld.
D'Anna involved a bond to appear and abide the order of the court. After plea and...
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