State ex rel. Van v. District Court

MR. CHIEF JUSTICE BRANTLY delivered the opinion of the court. Certiorari. On July 11, 1917, one Roderick K. McLeod was charged by information by the county attorney of Wheatland county, with the crime of arson in the first degree. He was then confined in the county jail. Later he was released on bail in the sum of $2,000, the relators herein becoming his sureties. After one or more postponements, his trial was fixed for January 16, 1918, but he failed to appear according to the condition of his bond. Thereupon the court declared his bond forfeited and summarily rendered and caused to be entered judgment against the relators for the amount thereof. This proceeding was thereupon instituted by them to have the judgment annulled on the ground that the court was without jurisdiction to render it. The procedure for the forfeiture of bail bonds, the fixing of [1] the liability of the sureties, and the enforcement of the collection of the amount of the penalty are found in Chapter I of Article VII, Title XII of Part II of the Revised Codes. Since the Codes contain no other provisions on the subject, those [579] found in this Chapter must be looked to by the courts as defining the extent of their power and as the exclusive guide as to the mode of exercising it. The provisions pertinent here are found in sections 9468 and 9471, which are as follows: “Sec. 9468. When any person under bond or undertaking in any criminal action or proceeding, either to appear and answer, or to prosecute an appeal, or to testify in any court, fails to perform the condition of such bond or undertaking, his default must be entered in the minutes, and judgment entered against him for the amount of such bond or undertaking, and proceedings may be taken to recover judgment against any or all of the sureties thereto in any court having jurisdiction. “Sec. 9471. If the forfeiture is not discharged, as provided in this Article, the county attorney may at any time proceed by action only against the bail upon their undertaking.” The former section in express terms authorizes the summary entry of judgment against the person under bail when he has incurred forfeiture, but with regard to the sureties goes no further than to authorize proceedings in any court having jurisdiction. The latter authorizes the county attorney to proceed against the sureties by action only, if the forfeiture has not in the meantime been discharged as provided elsewhere in the Chapter. (Sec. 9469.) In view of these explicit provisions, the court was wholly without power to render the judgment summarily. No question is presented as to whether the relators have [2] invoked the proper remedy. It is clear, however, that an appeal does not lie, because, though the judgment is final, it is not “a judgment entered in an action or special proceeding commenced in a district court, or brought in a district court from another court.” (Rev. Codes, sec. 7098.) Neither is there any other plain, speedy and adequate remedy. (Rev. Codes, sec. 7203.) Certiorari is therefore the proper remedy. The judgment is annulled. Judgment annulled. Mr. Justice Sanner and Mr. Justice Holloway concur.