State v. Smith

Decision Date11 January 1984
Citation14 OBR 17,469 N.E.2d 945,14 Ohio App.3d 14
Parties, 14 O.B.R. 17 The STATE of Ohio, Appellee, v. SMITH et al., Appellants.
CourtOhio Court of Appeals

Syllabus by the Court

In forfeiture proceedings under R.C. 2937.36, it is error for the court to enter judgment against a surety who has shown good cause for failing to produce defendant by establishing that the defendant is incarcerated in another county's jail.

Keith Shearer, Pros. Atty., and Martin Frantz, Wooster, for appellee.

Robert Gluck, Wooster, for appellants.

QUILLIN, Presiding Judge.

The appellee has filed no brief and we therefore proceed under App.R. 18(C) which provides in part:

"* * * If an appellee fails to file his brief * * * in determining the appeal, the court may accept the appellant's statement of the facts and issues as correct and reverse the judgment if appellant's brief reasonably appears to sustain such action."

After being charged with aggravated burglary and grand theft, Gregory Smith was released on bail. Appellant, Clyde W. White, was surety on the bail bond.

When Smith did not appear in court as directed, the court forfeited his bail and eventually rendered judgment against the surety White in the amount of penalty of the bond. White now appeals claiming procedural defects and exoneration because Smith was incarcerated in the Lorain County Jail.

According to the statement of facts supplied by appellant, when Smith failed to appear at a pretrial, the court on November 10, 1982, revoked the bond and ordered the clerk to notify the surety to appear on "a date certain" to show cause why judgment should not be entered against the surety. White was served with a copy of the journal entry but nothing else. No date certain was fixed.

White was unable to locate Smith until late January or early February 1983. In the interim, no action was taken by the prosecuting attorney or the court. On February 23, 1983, a journal entry was filed wherein the court found that the surety had failed to produce Smith and ordered forfeiture of the bond, execution against the surety and a capias for Smith's arrest. In response to the journal entry, the surety, on February 7, 1983, filed an answer and motion to dismiss which set up the defense of impossibility of performance by reason of Smith's incarceration in the Lorain County Jail. The surety informed the Wayne County Sheriff of the whereabouts of Smith, but the sheriff was unable to secure custody of Smith because there were "holders" issued by Medina and Summit County officials.

On March 14, 1983, the clerk of courts sent letters to the surety and his company notifying them that the bond had been forfeited and ordering them to show cause on or before April 14, 1983, why judgment should not be entered against...

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    • United States
    • Ohio Court of Appeals
    • January 11, 1984
  • Indiana Lumbermen's Mut. Ins. Co. v. US
    • United States
    • D.C. Court of Appeals
    • April 25, 1994
    ...v. Cummings, 724 S.W.2d 316 (Mo.Ct.App.1987); State v. Allied Fidelity Corp., 62 Md.App. 291, 489 A.2d 61 (1985); State v. Smith, 14 Ohio App.3d 14, 469 N.E.2d 945 (1984); State v. Amador, 98 N.M. 270, 648 P.2d 309 3 We cannot agree with appellant's suggestion that the trial court failed to......
  • City of Cleveland v. Joyce McCune, 93-LW-0481
    • United States
    • Ohio Court of Appeals
    • February 11, 1993
    ... ... case is within the sound discretion of the trial court ... State v. Unger (1981), 67 Ohio St.2d 65. In ... ruling on a motion for continuance, the trial court must look ... at the nature of the request; ... ...
  • State v. Howard L. Hollis, 86-LW-2127
    • United States
    • Ohio Court of Appeals
    • July 9, 1986
    ... ... vacate a bond forfeiture where the surety lacks a sufficient ... defense to the judgment. State v. Ward ... (1978), 53 Ohio St. 2d 40, 42. A sufficient defense is a ... showing of good cause as to why the surety failed to produce ... the defendant. Id.; State v. Smith (1984), ... 14 Ohio App. 3d 14. Research has not revealed any reported ... cases on the question of when a partial remission is due ... under R.C. 2937.39. However, the statute's language ... indicates that the court has broad discretion in the matter ... In ... ...
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