Sutton v. State ex rel. Selby, Co.

• Decision Date: 02 May 1922
• Docket Number: Case Number: 10628
• Citation: 206 P. 818,86 Okla. 120,1922 OK 158
• Parties: SUTTON et al. v. STATE ex rel. SELBY, Co. Atty.
• Court: Oklahoma Supreme Court

1922 OK 158

206 P. 818

86 Okla. 120

SUTTON et al. v. STATE ex rel. SELBY, Co. Atty.

Case Number: 10628

Supreme Court of Oklahoma

Decided: May 2, 1922

Syllabus

¶0 1. Bail--Forfeiture of Bond -- Finality of Order -- Collateral Attack -- Action on Bond.

The final order of the trial court, declaring a forfeiture of a bail bond, cannot be collaterally attacked in a subsequent action against the principal and sureties on the bond, except for fraud extrinsic to the matter tried by the court declaring such forfeiture.

2. Judgment--Vacation for Fraud.

The frauds for which a court of equity will set aside a judgment or decree between the same parties, rendered by a court of competent jurisdiction, are frauds extrinsic or collateral to the matter tried by the first court, such as where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of compromise or the like, and not fraud which was an issue in the former action.

Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.

Action by the State of Oklahoma, on the relation of Charles Selby, County Attorney of Oklahoma County, against A. L. Sutton and others to recover on forfeited bail bond. Judgment for plaintiff, and defendants bring error. Reversed and remanded.

C. B. Stuart and M. K. Cruce, for plaintiffs in error.

Forrest L. Hughes, Co. Atty., and M. S. Singleton, Asst. Co. Atty., for defendant in error.

NICHOLSON, J.

¶1 This is an action brought to recover the sum of $ 500 upon a forfeited appearance bond executed by A. L. Sutton, as principal, and J. Coody Johnson, A. H. Tyson, and T. H. Traylor, as sureties, given to answer a charge in the county court of Oklahoma county. The petition is in the ordinary former of actions of this character, and no complaint is made of the sufficiency thereof. The amended answer, after admitting the execution of the bond for the appearance of A. L. Sutton at the next term of court, avers that the case of the state of Oklahoma against A. L. Sutton was set for trial on the 7th day of December, 1916; that on said day said A. L. Sutton and his attorney were present in said court ready for trial; that on said day, when the case was called for trial, the same was, on motion of the county attorney, stricken from the docket for that term of court; that Sutton lived at or near Wewoka, and that his attorney resided outside of Oklahoma City; that on the 7th day of December, 1916, the county attorney, Charles Selby, informed said Sutton and his attorney that Sutton was not needed and that said case against him had been or would be dismissed; that the state of Oklahoma, through the county attorney's office, desired to use him later as a witness against some other people and he would be notified in the event they wanted him; that relying upon said statement of the county attorney, and being misled thereby, Sutton and his attorney returned home; that living outside of Oklahoma county, neither Sutton nor his attorney received any notice of the setting of said case for trial on the 26th day of February, 1917, and in fact had been, by the statement and promise of the county attorney, led to the belief that said case had been dismissed, and relying solely upon said statement, they made no effort to inform themselves as to the condition of the docket; that Sutton informed his bondsmen that the case had been or would be dismissed and they relied upon said information, and had no knowledge of the setting of said case on February 26, 1917, and for that reason neither they nor Sutton were present in the county court on that day; that neither Sutton nor his bondsmen had any notice or knowledge of the order forfeiting said bond until this action was filed against them and summons served upon them during the month of October, 1917, and for this reason, not knowing that said bond had been forfeited, they were precluded from making a motion in the county court to set aside such forfeiture until two regular terms of the county court had been convened and adjourned; that said A. L. Sutton had been ready and willing at all times to appear in said court, had been at or near Wewoka at all times, and could have been found at all times; that he was prevented from being at said trial by reason of a mistake and reliance upon the assurance of the county attorney that said case had been or would be dismissed, and by reason thereof was prevented by the state of Oklahoma, through its assistant attorney, from being present at said trial, and because thereof the defendants were not liable upon such bond, and the order forfeiting the same should be set aside and held for naught.

¶2 To sustain this defense, the defendant A. L. Sutton, who was the defendant in the case in the county court, and the one who gave the bond, testified in substance that he and his attorney, one Wattman, were present in the county court on December 7, 1916, the day the case was first set for trial; that they went to the office of the county attorney and had a conversation with Mr. Selby, the then assistant county attorney, in which Selby said that he was not after Sutton, but was after the agent at Newalla, and if Sutton would tell the truth about it, he would let him go; that Sutton replied that he did not know anything against the agent; that Selby then asked him where certain other parties lived, to which Sutton replied that some of them lived in Pottawatomie county, and Selby then said: "Well, you can go back home and find some of the other boys; I will let you go, and you need not come back any more unless we let you know. If we need you any more we will let you know." He further testified that Selby requested him to obtain statements from other parties who had been obtaining liquor at the express office at Newalla; that he procured these statements and gave them to Wattman to send to Selby; that he told his bondsmen that the case against him had been dismissed, and that he had no notice or knowledge of the setting of said case against him the following February, and did not know his bond had been forfeited until he was served with a summons in the case at bar.

¶3 E. W. Wattman testified that he was attorney for Sutton in the case in the county court; that he resided at Wewoka in 1916; that he and Sutton were in court ready for trial on December 7, 1916, when the case was set for trial; that he and Sutton went to the office of the county attorney and had a conversation with Mr. Selby in which Selby said that he had had considerable trouble at Newalla with the agent there ordering whisky and carrying it into the Indian Territory, and he wanted to break up that practice; that Selby stated that he would dismiss the case, but he wanted Sutton and his people to aid him in procuring evidence against the agent, and told Sutton that he wanted him to go home and get the other Suttons' statement; that Selby stated he wanted to strike the case from the assignment and when Wattman got the affidavits he required he would dismiss the case; that Wattman said to Selby "Why not dismiss it now?" and Selby replied, "Oh, I will not do it now, but you get the affidavits and I will dismiss the case." He further testified that he sent the affidavits as requested. On cross- examination he stated in answer to a question by Mr. Selby: "You said that when these statements came in, you were of the opinion you would dismiss the case."

¶4 For the plaintiff, Charles B. Selby testified that he was county attorney, and was assistant county attorney on December 7, 1916; that Sutton and Wattman, his attorney, came to the county attorney's office; that Judge Zwick, the county judge, was not in the office, but Mr. Brents, special agent for the government in liquor cases, was there; that Selby said to the defendant and his attorney that one D. W. Holstein, who had been the railroad agent at Newalla, had been violating the prohibitory laws, in that he had been taking orders for whisky and alcohol, representing certain foreign liquor dealers, and that there were four cases pending against him then; that he wanted to convict Holstein, and that he wanted to know what the facts were: that he had some leaves from the express book showing the receipt of shipments of whisky in the name of various parties, including the defendant Sutton and three or four other Suttons; that he wanted to know the facts and that if Holstein had taken orders from Sutton and his relatives and friends, and had transmitted these orders, he wanted to use Sutton and his...