Pacific Indemnity Co. v. Superior Court

CONREY, P. J.

On writ of review. In this proceeding the court is called upon to determine the validity of a summary judgment entered, upon forfeiture of a bail bond.

In the Municipal Court, one Armando was convicted of a misdemeanor, and was sentenced to serve a term of imprisonment. Thereupon the defendant appealed from the judgment and was admitted to bail and an undertaking of bail executed by petitioner was duly approved and filed. The bond, after the usual preliminary recitals, provides that the surety undertakes that the defendant “will appear and answer the charge above mentioned in whatever court it may be prosecuted, and shall, at all times render himself amenable to the orders and processes of any court in which the same may be prosecuted; and that he will surrender himself in execution of the judgment, upon its being affirmed or modified, or upon the appeal being dismissed, or that, in case the judgment be reversed and that the cause be remanded for a new trial, that he will appear in the court to which the cause may be remanded, and submit himself to the orders and processes thereof.”

Upon the bail so given the defendant was released from custody. Thereafter the Superior Court reversed the judg-ment and remanded the cause for a new trial. The order of the Superior Court having been duly filed in the Municipal Court on December 13', 1928, the cause was called for resetting. At that time one W. Davis appeared for the defendant, and the case was continued to the next day. On December 14th, Davis again appearing for defendant, the case was set down to be tried on January 9, 1929. “Defendant ordered to appear. Thirty day period waived.” When the case was called for trial on January 9th the defendant failed to appear. Thereupon the court declared the bail forfeited. Thereafter such proceedings were had

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that summary judgment was entered against said surety, Pacific Indemnity Company, in the Superior Court. In the present proceeding by writ of review, the surety contends that the Superior Court, in entering such judgment, was without jurisdiction, and that the judgment should be declared null and void.

Petitioner’s first point

is that the bond is void because the conditions of liability, as stated therein, go be-, yond the requirements of the statutory form of an appeal bond as contained in section 1273 of the Penal Code. That section does not set out a prescribed form, but it provides' the essentials of the agreement to be contained in the bond. “1273.