State v. Liakas, 34211

• Decision Date: 29 November 1957
• Docket Number: No. 34211,34211
• Parties: The STATE of Nebraska, Appellee, v. Dean LIAKAS and Summit Fidelity and Surety Company of Akron, Ohio, Appellants.
• Court: Nebraska Supreme Court

Page 373

86 N.W.2d 373

165 Neb. 503

The STATE of Nebraska, Appellee, v. Dean LIAKAS and Summit Fidelity and Surety Company of Akron, Ohio, Appellants.

No. 34211.

Supreme Court of Nebraska.

Nov. 29, 1957.

Syllabus by the Court.

1. The surety on a bail bond may at any time he elects before its breach relieve himself of all obligation by surrendering the principal in the bond to the court or the proper officer.

2. The giving and acceptance of a bail bond and the release of the accused are effective to transfer his custody from the State to the surety who becomes the keeper or jailer of the accused by his selection and the dominance of the surety over the accused is a continuance of the original imprisonment.

3. There is an implied covenant in the contract between the surety and the State that it will not interfere with the right of the former to retain the principal in his custody or with the right of the surety to discharge himself as bail by surrendering the principal in a legal manner in satisfaction and discharge of the bond.

4. Generally, a surety on a bail bond is excused from liability and responsibility if performance of the obligation of the bond is made impossible in a legal sense by an act of God, of the public enemy, of the law, or of the obligee.

5. The Governor of a state is obliged by the Constitution of the United States to have delivered to the executive authority of any state of the United States any person charged in the latter state with a crime who is a fugitive from justice and is in the former state.

6. However, if at the time a requisition is made the fugitive is in the custody of the court of the aslyum state under a charge of offense against its law, the Governor thereof is not required and cannot by compelled to surrender the fugitive until the laws of that state are satisfied.

7. The Governor of the asylum state may, in the situation above recited, honor the requisition and surrender the fugitive to a sister state in which event the asylum state waives its jurisdiction over the fugitive.

8. A surety in a bail bond is discharged from further liability if the sovereignty whose jurisdiction first attaches surrenders the accused, who is the principal in the bond, to another sovereignty.

9. The doctrine of strict construction prevails concerning the liability of a surety on a bail bond and he cannot be subjected to liability beyond the strict scope of his engagement.

10. Once a surety is discharged, liability cannot be revived without his consent.

O'Sullivan & O'Sullivan, Omaha, for appellants.

Eugene F. Fitzgerald, County Atty., Omaha, Clarence S. Beck, Atty. Gen., Ralph D. Nelson, Asst. Atty. Gen., for appellee.

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

BOSLAUGH, Justice.

Dean Liakas, herein referred to as appellant, was convicted of the crime of burglary on two counts in the district court for Douglas County. He was adjudged November 9, 1954, to be confined in the Nebraska State Penitentiary. He prosecuted error proceedings to this court. The judgment was affirmed and the district court was commanded to enforce it. Liakas v. State, 161 Neb. 130, 72 N.W.2d 677. The mandate of this court was issued May 11, 1956, and filed in the district court the next day.

This court in error proceedings allowed a writ of error and allowed appellant, as the plaintiff in error, to be released from custody pending the error proceedings upon his entering into a bond to be fixed by the district court for Douglas County. That court required a bond in the sum of $5,000. Appellant as principal and the Summit Fidelity and Surety Company as surety entered into, subscribed, and acknowledged a bond in that amount before that court November 12, 1954, in form as required by law. It was approved and made of record in the office of the clerk and appellant was released from custody pending the proceedings in error. The bond required appellant to prosecute the proceedings to effect, to appear personally in the district court for Douglas County from day to day and from term to term, not to depart from said county without leave, and to abide the final judgment enjoined upon him in said cause.

The surety filed an application in the district court for Douglas County June 5, 1956, for exoneration from and discharge of the bail evidenced by the bond, the substance of which is that: The Governor of Nebraska on March 11, 1955, issued a warrant for the arrest of appellant and granted extradition of him to the State of Iowa upon a requisition of the Governor of that state. Appellant was on or about April 9, 1955, removed from Nebraska and was taken to Iowa by the authorities of that state under and by virtue of the authority vested in them by the extradition warrant issued by the Governor of Nebraska. The removal of appellant from Nebraska to Iowa was without his approval or consent and without the approval or consent of the surety. The removal of appellant from Nebraska and its jurisdiction was against the protest of the surety made to the county attorney of Douglas County, the Attorney General, and the Governor of Nebraska before the removal of appellant to Iowa. The act of the Governor of Nebraska granting extradition of appellant to Iowa was such an interference with the custody of appellant by the surety as to discharge and exonerate the bond and the surety is entitled to discharge and exoneration of its bond and all liability thereon.

Appellee filed on June 6, 1956, a motion for an order forfeiting the bond. A hearing was had on the application of the surety and the motion of the State. The bail bond was forfeited and the application of the surety for exoneration and discharge of the bond was denied. Judgment was rendered August 22, 1956, against the surety and in favor of the State on the bond for $5,000. A motion of the surety for new trial was denied. This appeal contests and correctness of the action of the district court rejecting the application of the surety, granting the motion of the State, and rendering judgment for the penalty of the bond against the surety and in favor of the State.

Evidence was presented on the hearing above mentioned, the relevant parts of which follow:

The Governor of Iowa on March 10, 1955, requested the Governor of Nebraska to have appellant apprehended and delivered to a named person who was authorized to receive appellant and to convey him to Iowa to be dealt with according to law in reference to a charge of burglary against him in that state. The surety made objections to the Governor of Nebraska in reference to the request that appellant be delivered to Iowa. The surety related the facts concerning the conviction of appellant for a felony in Nebraska and the pendency of the case in this court to review his conviction; the giving of a bond by the surety for his release from custody during the pendency of the appellate proceedings; and the legal right of the surety to the custody of appellant in Nebraska during the continuance in effect of the bail bond and until the final disposition of the case then pending in this court. The surety charged that the surrender of the jurisdiction of appellant by Nebraska and his removal to Iowa would prejudice the rights and increase the liabilities of the surety and that it would be violative of the position and responsibility of the surety as the custodian of appellant. The surety asked that the request of the Governor of Iowa be denied, that Nebraska continue its jurisdiction of appellant until decision by this court of the case involving him, and that he be permitted to perform the obligation of his bond and abide the final decision in the pending case.

The Governor of Nebraska honored the requisition and issued a warrant on March 11, 1955, authorizing the arrest and extradition of appellant to Iowa. Appellant was by virtue thereof taken from Nebraska to Iowa.

A bail bond is a contract between the surety therein and the State to the effect that the accused, the principal in the bond, will appear in court when required and that he will comply with all the conditions of the bond. The surety may relieve himself of liability at any time by surrendering the principal in a legal manner. The giving and acceptance of a bail bond and the discharge of the accused are effective to transfer his custody from the officer who has him in charge to the surety on the bond who becomes the keeper or jailer of the accused by his selection. The dominance of the surety over the accused is a continuance of the original imprisonment. It is a principle of general acceptance and application that the surety in a bail bond has control and custody of the principal until the surety is discharged or excused for good cause recognized by law. If the surety elects, he may at any time selected by him seize and forcibly arrest the principal and deliver him up in discharge of the obligations of the surety. State ex rel. Smith v. Western Surety Co., 154 Neb. 895, 50 N.W.2d 100; Reese v. United States, 9 Wall. 13, 19 L.Ed. 541; Taylor v. Taintor, 16 Wall. 366, 21 L.Ed. 287; Cooper v. State, 5 Tex.App. 215, 32 Am.Rep. 571; United States v. Vendetti, D.C., 33 F.Supp. 34; Miller v. Commonwealth, 192 Ky. 709, 234 S.W. 307; 6 Am.Jur., Bail and Recognizance, § 100, p. 100.

There is an implied covenant in the contract between the surety and State that it will not interfere with the right of the surety to retain the principal in his custody or with the right of the surety to discharge himself as bail by taking the principal into actual custody and surrendering him in satisfaction of the bond. Miller v. Commonwealth, supra; 8 C.J.S. Bail § 79, p. 152.

It is generally said that a surety on a bail bond is excused and a forfeiture of the bond will be vacated if the performance of the obligations of the bond is made impossible by an act of God, of the public enemy, of the law, or of the obligee. State v. Wynne, 356 Mo....