State v. United Bonding Ins. Co.

• Decision Date: 09 February 1970
• Docket Number: No. 8819,8819
• Citation: 464 P.2d 884,1970 NMSC 17,81 N.M. 154
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. UNITED BONDING INSURANCE COMPANY, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 884

464 P.2d 884

81 N.M. 154

STATE of New Mexico, Plaintiff-Appellee, v. UNITED BONDING INSURANCE COMPANY, Defendant-Appellant.

No. 8819.

Supreme Court of New Mexico.

Feb. 9, 1970.

Easley & Reynolds, Hobbs, for defendant-appellant.

James A. Maloney, Atty. Gen., Mark B. Thompson, III, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

FRANK B. ZINN, District Judge.

United Bonding Insurance Company and its agent seek relief from a judgment ordering forfeiture of the full amount of two criminal appeal bonds, one for $5,000 and the other for $2,000, which they had written for Jerry Ray James following his conviction for separate felonies in the district court of Lea County. James's convictions were affirmed by this court in State v. James, 76 N.M. 376, 415 P.2d 350 (1966) and 76 N.M. 416, 415 P.2d 543 (1966).

This court's commitments were issued on July 6, 1966 and on July 12, 1966, directing the sheriff of Lea County to take James into custody and deliver him to the superintendent of the penitentiary to carry out the sentences of imprisonment.

The sheriff was unable to execute the writs of commitment because James was incarcerated in Mississippi. James later escaped but was arrested in Arizona by federal officers and subsequently was convicted and sentenced to a term in federal prison. The sheriff sent hold orders to the authorities having custody of James, advising them of the New Mexico commitments. United, through its agent, was notified of the commitments by the sheriff and was aware of James's detention in Mississippi before the commitments were issued.

On May 8, 1968, twenty-two months after receipt of the commitments, the sheriff made his return, advising this court of his inability to execute them because of the federal custody of James.

The assistant district attorney, in the name of the State, filed a motion in each of James's cases in the district court asking judgment against United for the amount of the recognizances because of James's failure to appear and comply with the judgments and sentences imposed. The court issued orders to show cause directed to James, United and its attorney in fact. The court found in each of the orders that James had failed to appear to comply with the judgment and sentence, and it ordered the recognizances forfeited and issued a bench warrant for James's apprehension. The orders directed United to appear to show cause why judgment should not be entered against it for the amount of the recognizances. Service of the motion and show cause order was made on James and on appellants. A hearing was held on the matter with the two cases consolidated for this purpose, and on January 7, 1969 the court entered its judgment against United and its attorney in fact for $7,000, the full amount of the recognizances.

Appellants seek reversal of the judgment on three points, the first being lack of jurisdiction. The contention is made that the district court having lost jurisdiction over the cases by virtue of the previous appeals to this court was without power to proceed with action on the recognizances. This contention is without merit. It is true that the district court's jurisdiction over the criminal proceedings against James terminated with the appeal to the court. However, the actions on the recognizances, though normally pursued in the criminal causes of action, are actually independent civil proceedings brought by the state against appellants pursuant to statute. Section 41-4-22, N.M.S.A.1953 Comp. Supporting this view and stating the law decisive of appellants' point is 8 Am.Jur.2d, Bail and Recognizance, § 146:

'An action by the state or federal government on a criminal bail bond is civil, not criminal, in nature. The action does not involve the guilt or innocence, conviction or acquittal, of any person; though it may be a proceeding arising in a criminal case, it is in no sense a continuation of the criminal proceedings in which the bail bond was given. Hence, the procedural rules governing civil actions and appeals or writs of error prevail in actions on bail bonds or recognizances.

'Where a bond has been declared forfeited on non-appearance of the principal in a criminal case, and the enforcement of the bond liability is prosecuted in a civil action, transfer of the criminal case to another court will not affect the jurisdiction of the first court to determine the enforcement of the forfeiture.'

A similar action, State v. United Bonding Ins. Co., 244 La. 716, 154 So.2d 374 (1963), held that a proceeding to forfeit a bail bond is a civil proceeding arising out of contract between the surety of the accused and the state.

The second point contends that the forfeiture was invalid because no call was made to ascertain factually the failure of defendant to appear. There must be a finding of a failure of the principal to answer or appear upon the calling of his case for trial or other court action, or otherwise to fail to respond to the court. This finding is essential before any default on the undertaking of the surety can be ordered by the court. State v. Barboa, 64 N.M. 5, 322 P.2d 337 (1958).

The failure of James to respond, or of United, the bail, to produce him within a reasonable time after notice obviates the need for any ceremonial calling of James's name about the courthouse, as his failure to respond is evidence supporting the court's finding of non-appearance. Here the court so found and directed the clerk to so enter upon the minutes as required by § 41-4-21, N.M.S.A.1953 Comp.

The trial court found that the sheriff, in his efforts to execute the commitments, conveyed notice of the writs to the bail. The undertaking of United was to pay the penalty of the bond if the principal, James, did not respond. By statute the bail had power to take and deliver the principal at any time to the sheriff and thus be relieved of its obligation. Section 41-4-20, N.M.S.A.1953 Comp. Had United effected a taking of James and delivered him at any time during the lengthy period when the writs of this court were outstanding and before the forfeiture procedure commenced, its obligation as bail would have been fulfilled.

Notice to the bail or surety is equivalent to notice to the principal. The sheriff, acting for this court, undertook to execute our orders of commitment and notified United of them. It was information from United's representative prior to receipt of this court's commitments for execution that gave the sheriff his first knowledge of James's incarceration in Mississippi. A further notice to appear was contained in the orders to show cause, which were issued in the forfeiture proceedings out of which this present cause arose. A copy of those orders and the supporting documents which included this court's writs of commitment were served on United, and were personally served upon James on July 9, 1968. This constituted adequate notice to both the principal, James, and the bail that he was sought by the authorities of this State for execution of his sentence. It them became the bail's duty to produce the principal. The introductory note to the annotation on the subject of discharge of sureties on bail bonds, appearing in 4 A.L.R.2d 441, gives a concise statement of this rule:

'A prisoner released on bail is regarded as being transferred from the custody of the public officials charged with his confinement to that of the sureties on his bail bond or recognizance. The sureties are then charged with the duty of producing him to answer the charges against him at the proper time and are liable for a failure to do so, unless the failure is excused for reasons which the courts regard as adequate. What reasons are so regarded have varied from time to time and from jurisdiction to jurisdiction, but in general it has been said that a default in appearance will be excused only by an act of God, an act of the law, an act of the obligee, or an act of the public enemy.'

The obligation of the surety is derived from the undertaking and from the laws of the state. Section 21-2-1(9)(4), N.M.S.A.1953 Comp. Supreme Court Rule 9, supra, states in referring to appeals in criminal cases:

'* * * Pending such final determination, the defendant shall be entitled to be released on bail by filing a bond, the amount and conditions of which shall be fixed by the district court. The bond shall be sufficient to secure the due execution of the sentence in case the judgment be affirmed * * *.'

The transcript of the record is devoid of any orders fixing the conditions of the appeal bonds, and only the amounts were fixed.

The form of bonds employed appears to have been designed for appeal bonds from the justice of the peace courts to the district courts after criminal convictions. It is not a form prescribed by statute. It bears no indication of approval by the court, merely the clerk's filing stamp. The pertinent portion of the bonds reads:

'* * * Now therefore, if the said defendant shall appear at the time provided for a trial of said case in said District Court, and shall remain in attendance upon said court from day to day and from...