State v. Ward

• Decision Date: 01 February 1978
• Docket Number: No. 77-179,77-179
• Citation: 53 Ohio St.2d 40,372 N.E.2d 586
• Parties: , 7 O.O.3d 124 The STATE of Ohio, Appellee, v. WARD, Midland Insurance Company, Appellant.
• Court: Ohio Supreme Court

Page 40

53 Ohio St.2d 40

372 N.E.2d 586, 7 O.O.3d 124

The STATE of Ohio, Appellee, v.WARD, Midland Insurance Company, Appellant.

No. 77-179.

Supreme Court of Ohio.

Feb. 1, 1978.

Appellant, Midland Insurance Company, is surety on a bail bond issued in the amount of $2,500.The bond was posted by one Charles Ward who plead guilty to an indictment charging him with grand theft.The plea was entered in July 1975.In September 1975, Ward failed to appear for his scheduled sentencing and the bond was revoked.In December 1975, the trial court entered the following order:

"This 19th day of December, 1975the court finds that the defendant herein entered a plea of guilty as charged in the indictment and was thereby convicted as to count No. 2 of the indictment on July 16, 1975.The court further finds that on September 8, 1975, a judgment entry was filed revoking the defendant's bond for the reason that the whereabouts of the defendant was unknown and said defendant was unable to be located for the purpose of sentencing.At the same time, the court issued a bench warrant for the arrest of the defendant.

"The court further finds that judgment in the amount of $2,500.00 should be awarded in favor of the State of Ohio and against Charles Ward, defendant herein, and the Midland Insurance Company.

"It is therefore ordered that judgment be awarded in favor of the State of Ohio and against the defendantCharles Ward and against the Midland Insurance Company, surety herein, in the sum of $2,500.00.It is further ordered that the surety herein shall produce the body of the said defendant within 20 days of this date or said judgment shall be final."

The appellant failed to find Ward within the 20-day time period, but Ward was apprehended in February 1976 and sentenced in April 1976.In July 1976, appellant filed a motion to vacate the order of forfeiture entered by the trial court.That motion was overruled and, upon appeal, the judgment of the trial court was affirmed by the Court of Appeals.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

David E. Bowers, Pros.Atty., and Richard K. Warren, Lima, for appellee.

Britz & Zemmelman and Harland M. Britz, Toledo, for appellant.

PER CURIAM.

All of appellant's propositions of law relate to the procedure employed by the trial court in awarding judgment in favor of the state in the amount of the bond.Appellant urges that the provision of R.C. 2937.36, requiring notification of the surety on a bail bond to show cause why judgment should not be entered against it, following forfeiture, is mandatory; that the failure of the trial court to comply with the mandatory notice requirement of R.C. 2937.36 excuses the surety from liability until such time as a show cause hearing is held; and that a three-month delay in notifying the surety of failure of its principal to appear in court is good cause for not entering judgment against the surety and for giving an extension of time to produce the principal.

R.C. 2937.36(C) provides:

"As to recognizances he(magistrate or clerk) shall notify accused and each surety by ordinary mail at the address shown by them in their affidavits of qualification or on the record of the case, of the default of the accused and the adjudication of forfeiture and...