People v. Fidelity & Deposit Co.

[162]

BARNARD, J.

On July 16, 1926, one C. H. Wadsworth was held to answer after a preliminary examination on a felony charge. His bail was fixed at $500. On July 21, 1926, the defendant surety company furnished an undertaking in the sum of $500, which was approved by a judge of the superior court, and the said Wadsworth was released from custody. The condition of said bond is as follows:

“Now we, Fidelity and Deposit Company of Maryland, a corporation . . . hereby undertake that the above named C. H. Wadsworth will appear in that or any other court in which his appearance may be lawfully required upon that charge and will at all times render himself amenable to its orders and processes, and will appear for judgment and surrender himself in execution thereof; or if he fails to perform either of these conditions, that we will pay to the People of the State of California the sum of Five Hundred Dollars.”

Thereafter, said Wadsworth entered a plea of not guilty, but later, on October 25, 1926, he entered a plea of guilty, waived time and applied for probation. Pending a report and hearing on this application, said defendant was allowed to remain at liberty. The hearing on said application for probation was regularly continued, from time to time, until February 26, 1927, and the said Wadsworth having failed to appear at that time, after due proceedings, said bond was regularly declared forfeited and this action was brought thereon. In its answer the defendant surety company set up as a defense that when the said Wadsworth appeared in the superior court, pleaded guilty and asked for probation, the liability of the bonding company was at an end; and that it was unaware of the release of Wadsworth after conviction, and had not consented to such release. The plaintiff moved to strike out this portion of the answer, which motion was granted. Upon the trial of the case, judgment was entered for the plaintiff. The defendant surety company has appealed on a bill of exceptions covering the proceedings resulting in the order to strike, and upon the judgment-roll. The only question presented by the appellant is as to whether or not the portion of the answer stricken out by the trial court constituted a good defense to this action; the only point argued by the appellant being that it was the duty of the court to order Wadsworth into custody upon his plea