United States Fidelity & Guaranty Co. v. State

• Decision Date: 24 February 1947
• Docket Number: 4851
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. STATE et al
• Court: Arizona Supreme Court

177 P.2d 823

65 Ariz. 212

UNITED STATES FIDELITY & GUARANTY CO. v. STATE et al

No. 4851

Supreme Court of Arizona

February 24, 1947

Appeal from Superior Court, Maricopa County; Howard C. Speakman Judge.

Affirmed.

E. G Frazier and Charlie W. Clark, both of Phoenix, for appellant.

John L Sullivan, Atty. Gen., John W. Rood, Asst. Atty. Gen., and Edwin Beauchamp, County Atty., and Fred J. Hyder, Deputy County Atty., both of Phoenix, for appellees.

LaPrade, Judge. Stanford, C. J., and Udall, J., concur.

OPINION

LaPrade, Judge.

Frank L. James was informed against in the Superior Court of Maricopa County for the crime of obtaining money by means of a bogus check, a felony, and admitted to bail in the sum of $ 750. Bail being furnished by the defendant's undertaking, on which the appellant United States Fidelity & Guaranty Company, a corporation, was surety, the defendant was released from custody. The bail bond was conditioned that James would personally appear before the court to answer the information; at all times render himself amenable to all orders and processes of the court; and render himself for trial upon the same. Defendant appeared for arraignment with counsel, entered a plea of not guilty, and the case was regularly set down for trial on a day certain. On the trial date counsel for the state and defendant appeared in open court, whereupon the state announced that it was ready for trial. Defendant did not appear, and no legal cause being shown to excuse his absence, the court entered its order forfeiting defendant's bail, and ordered a bench warrant for his apprehension. Ten days having elapsed and the forfeiture not having been discharged, the county attorney, by the authority of the provisions contained in section 44-451, A.C.A.1939, filed in the office of the clerk of the court a certified copy of the order of the judge forfeiting the undertaking, together with a written request to docket and enter a judgment in the amount of the bond in favor of the county and against defendant Frank L. James and his surety. The clerk complied with this request, docketed the same, and entered judgment against each of them. Thereafter United States Fidelity & Guaranty Company filed a motion to vacate the judgment upon the ground that as to it the judgment was null and void for the reason that it was entered by the clerk of the court without authority of law. The motion to vacate was denied, whereupon appellant perfected this appeal from the judgment and the order denying its motion to vacate the judgment.

Briefly summarized, appellant's assignment of error is to the effect that the judgment was entered without authority of law for the reason that it was entered and docketed by the clerk of the superior court without any order for judgment by the judge of the court. In support of this assignment, appellant submits the following propositions of law, which we have summarized.

I

That the clerk of the court has no judicial authority, and that judicial authority cannot be conferred upon the clerk by a rule promulgated by the Supreme Court.

II

That section 44-451, A.C.A.1939, being a rule of court, is in violation of and in excess of the powers granted the Supreme Court by Ch. 8, Laws of Arizona 1939 (Art. 2, Ch. 19 A.C.A.1939), and that said rule deprives appellant of the substantive right of a trial by jury as provided by section 5171, R.C.A.1928, in effect at the time of the adoption of the rule contained in section 44-451, A.C.A.1939, and as guaranteed by the Constitution, sec. 23 of Art. 2.

Appellant's first proposition of law asserting that the clerk of the court has no judicial authority, and that judicial authority cannot be conferred upon the clerk by a rule promulgated by the Supreme Court, in our opinion, is without merit. Appellant argues that by our State Constitution the judicial power of the state is vested in the Supreme Court, superior courts, justices of the peace, and such courts inferior to the superior courts as may be provided by law. Art. 6, sec. 1, Ariz.Const. The statutes enacted subsequent to the adoption of the Constitution defining the powers and duties of the clerk of the court were all statutes relating to procedure and the functioning of the court. We pointed out in Burney v. Lee, 59 Ariz. 360, 129 P.2d 308, 311, that the rule-making power is essentially judicial in its nature, and that the act conferring rule-making power upon the court "was not unconstitutional as an unauthorized delegation of legislative power, but was merely a withdrawal by the legislature from the field in which it had at most merely concurrent power with the courts." By the rules adopted no attempt has been made to confer upon the clerk of the court the authority to make an order for a judgment, which right is vested solely in the court, speaking through its judge. In the instant case, the predicate for the judgment, that was physically entered by the clerk, was the order of the court forfeiting the bond. The clerk's duties are not purely ministerial, but are rather an integral part of the whole judicial process. The clerk of the court from time immemorial has been considered an officer of the court and as such endowed with certain judicial authority to aid and promote the judicial process. The clerk of the court is a constitutional officer "who shall have such powers and perform such duties * * *, as shall be provided by law." Art. 6, sec. 18, Ariz.Const. A civil action is commenced by filing a complaint with the court, sec. 21-301, A.C.A.1939: this is physically accomplished by filing the complaint with the clerk. Summons is issued by the clerk, sec. 21-302, A.C.A.1939. All mesne process and process to enforce and execute judgments, for entering defaults, and for other proceedings which do not require allowance or order of court are grantable of course by the clerk, such as taxing costs, sec. 21-1204, A.C.A. 1939; entering defaults when party against whom judgment for affirmative relief is sought has failed to plead or otherwise defend, sec. 21-1205, A.C.A. 1939; entering judgment on direction of court when prevailing party recovers only money or costs, sec. 21-1230, A.C.A. 1939; and, entering judgment when party asserting claim accepts offer of defending party to allow judgment to be taken against him as specified, sec. 21-1612, A.C.A. 1939. In cases of judgments for money or costs only, or that there be no recovery, a notation thereof in the civil docket, by the clerk, constitutes the entry of judgment, Sec. 21-1230, A.C.A. 1939; Southwestern Freight Lines v. Shafer, 57 Ariz. 111, 111 P.2d 625; Julian v. Carpenter, 65 Ariz. 157, 176 P.2d 693.

The second proposition of law presents two fundamental questions. They are:

1. Did the appellant as surety on the forfeited bond have the right to have filed against it an action, and the right to a jury trial thereon?

2. Is the right to a trial by jury a substantive right? The answer to the first question is determinative of the appeal.

The constitutional provision referred to, being Art. 2, sec. 23, reads as follows: "(Trial by jury.) -- The right of trial by jury shall remain inviolate, but provision may be made by law for a jury of a number less than twelve in courts not of record, and for a verdict by nine or more jurors in civil cases in any court of record, and for waiving of a jury in civil cases where the consent of the parties interested is given thereto."

Section 5171, R.C.A. 1928, referred to in the same proposition of law, provides the method for the forfeiture of the bond where the defendant fails to appear, and then says: "* * * If the forfeiture be not discharged, the county attorney may, at any time after twenty days from the entry in the minutes, bring an action against the sureties upon their bail, or if money was deposited the clerk with whom it was deposited, shall, at the end of thirty days, pay the money deposited to the county treasurer."

The new rule relating to the enforcement of a forfeiture of a bail bond is section 44-451, A.C.A. 1939, and reads as follows: "Enforcement of forfeiture. -- If the forfeiture is not discharged as provided in section 104 (§ 44-450), and the undertaking is one secured otherwise than by the deposit of money or bonds, it shall be the duty of the county attorney, immediately after the lapse of ten (10) days after the forfeiture, to proceed against the defendant, or any surety, upon his undertaking, as follows: The county attorney shall file a certified copy of the order of the court or judge forfeiting the same, in the office of the clerk of superior court of the county wherein such order shall have been made, and thereupon the said official shall docket the same and enter judgment against the person bound by the undertaking for the amount of the penalty of said undertaking, and execution shall be issued to collect the amount of said undertaking." (Rules Cr. Proc., sec. 105.)

This rule was promulgated and adopted by this court by authority of its conceived power to promulgate rules and regulate pleading, practice, and procedure in judicial proceedings in all courts of the state. The authority conferred upon this court was by an act of the legislature, being Ch. 8, sec. 1 Laws of 1939 (now incorporated in A.C.A. 1939 as section 19-202). This section reads as follows: "Rules of pleading, practice, and procedure. -- The Supreme Court, by rules promulgated from time to time, shall regulate pleading, practice and procedure in judicial proceedings in all courts of the state, for the purpose of simplifying the same and of promoting the speedy determination of litigation upon its merits. Such rules shall not abridge, enlarge or modify the substantive rights of any litigant. The Supreme Court shall cause the...