Opinion
No. 9621.
November 22, 1965.
APPEAL FROM DISTRICT COURT OF THE NINTH JUDICIAL DISTRICT, BONNEVILLE COUNTY, HENRY S. MARTIN, J.
A.A. Merrill Idaho Falls, for appellant.
Ferebauer Barnard, Idaho Falls, Allan G. Shepard, Atty. Gen., Boise, Jack G. Voshell, Pros. Atty., Idaho Falls, for respondent.
The right to relief from forfeiture or bail or lieu deposit as governed by statute. Section 19-2927 I.C.; State v. Mayer, 81 Idaho 111, 338 P.2d 270; People v. Hrjak, 85 Cal.App. 301, 259 P. 353; 8 C.J.S. Bail § 91; Van Glider v. City and County of Denver, 104 Colo. 76, 89 P.2d 529.
Relief from forfeiture and excuse from failure to appear may be granted the bondsman if he has acted in good faith and surrendered the defendant to the court. 84 A.L.R. 440.
A surety must be discharged where he has produced his principle after forfeiture and offered to pay such costs as the court might adjudge. Weaver v. State, 56 Ind. App. 394, 105 N.E. 517; State v. Olsen, 127 Wn. 300, 220 P. 776; State v. Robinson, 205 Iowa 1055, 218 N.W. 918; State v. Taylor, Mo.App., 20 S.W.2d 960; United States v. O'Leary, D.C., 275 F. 202; 32 A.L.R. 259; 3 A.L.R. 180-198 and cases therein cited; State v. Williams, 127 Wn. 658, 221 P. 289; Henry v. U.S., 7 cir., 288 F. 843, 43 A.L.R. 140.
Where the statutes of the jurisdiction prescribe certain things to be done by a surety on a bail bond, who surrenders his principal in order to be relieved of liability on the bond, the statutory requirements must be strictly complied with to effectively exonerate the surety. Anno.: 3 A.L.R. 181, 73 A.L.R. 1369; State v. Miller, 109 La. 27, 33 So. 57; Cook v. Harper, 78 Ind. App. 267, 135 N.E. 349; State v. Hamilton, 196 Iowa 998, 129 N.W. 838
An application for relief from a bail bond forfeiture must be made within the time limited by statute. State v. Mayer, 81 Idaho 111, 338 P.2d 270; Dickson v. Mullings, 66 Utah 282, 241 P. 840, 43 A.L.R. 136; State v. Jimas, 166 Wn. 356, 7 P.2d 15, 84 A.L.R. 416; State v. Johnson, 132 La. 11, 60 So. 702; People v. Grundy, 218 App. Div. 541, 218 N.Y.S. 420; People v. Simon, 244 Ill. App.? 484.
To obtain relief from forfeiture of bail, the defendant must appear within twenty days from the entry of his default on the court minutes and must offer a satisfactory excuse for his neglect. Section 19-2927, Idaho Code; State v. Mayer, supra.
Where the statute governing relief from bond forfeitures provides the principal must show that his default was not wilful, or that he shall satisfactorily excuse his failure to appear, such provisions will be given full force and effect. People v. Wilcox, Cal.App., 344 P.2d 847; People v. Houle, 153 Cal.App.2d Supp. 894, 316 P.2d 100; Edwards v. State, Okl.Cr., 321 P.2d 955.
An action to enforce the forfeiture of a bail bond by collection of the penal sum thereof is a civil action, not criminal in its nature, and does not involve the guilt or innocence, or the subsequent conviction or acquittal of any person, particularly when the forfeiture of the bond has already taken place. State v. Haverstick, Mo., 326 S.W.2d 92, 75 A.L.R.2d 1422; State v. Wynne, 238 Mo.App. 436, 181 S.W.2d 781; Lamphire v. State, 73 N.H. 463, 62 A. 786.
An order of forfeiture of a bail bond is to be regarded as final, with the force and effect of a judgment, where no proceedings for relief from the forfeiture are taken within the time limited by statute. Manning v. State, Okl., 120 P.2d 980.
This action was instituted by the County of Bonneville pursuant to I.C. § 19-2928. The facts are set out in a companion case, State v. Overby, 90 Idaho 41, 408 P.2d 155 (1965). The bonding company posted two bail bonds of $1,000 each to assure the appearance of Marion B. Overby at certain judicial proceedings. Overby failed to appear at the required time and the bonds were ordered forfeited on June 2, 1964. The formal order was entered on June 4, 1964. On July 14, 1964, Overby, by and through his bondsman, moved to cancel the forfeiture orders. This motion was denied and we affirmed the judgment of the district court. State v. Overby, supra.
" 19-2928. Enforcement of forfeiture. — If the forfeiture is not discharged, as provided in the last section, the prosecuting attorney may, at any time after twenty days from the entry upon the minutes, as provided in the last section, proceed by action in the name of the county, against their bail upon their undertaking."
In the present action to enforce the order of forfeiture, the bonding company set up numerous allegations in support of affirmative defenses. On the motion of the plaintiff, the trial court struck certain of these allegations from the defendant's answer. The bonding company asserts error in this ruling.
Under Rule 12(f) of the Idaho Rules of Civil Procedure, "the court may order stricken from any pleading any insufficient defense or any * * * immaterial * * * matter." The trial court found these allegations immaterial to the issues presented and we agree. These allegations went to the same matter the bonding company asserted in its prior motion to cancel the forfeiture orders and its appeal from the ruling denying such motion. The issues created by such allegations have been determined in State v. Overby, supra.
There was no error in the trial court's ruling to strike the defenses or in entering judgment for the County.
The judgment in favor of the County of Bonneville against United Bonding Insurance Company for $2,000 plus $400 attorney fees is affirmed.
Costs to respondent.
McFADDEN, TAYLOR, SMITH and KNUDSON, JJ., concur.