People v. New York Indemnity Co.

Steven Morgan was arrested in the city of Los Angeles on a misdemeanor charge. On September 10, 1926, bail was fixed in the sum of $1700 (by whom does not appear from the record before us), and on the same day the defendant corporation executed and delivered to the clerk of the municipal court a bond in the required sum, whereupon Morgan was released from custody. The transcript of the docket in the case shows that after a number of continuances of the matter the bond was ordered forfeited on February 17, 1927, and on March 9, 1927, a certified copy of such order was sent to the city prosecutor, who filed a complaint thereon in the superior court on September 27, 1927. The case was tried January 11, 1929. Plaintiff introduced in evidence a certified copy of the bond and a certified transcript of the record of the case of People v. Morgan in which the bond was filed, and then rested. Defendant moved for a nonsuit, which was denied, and then rested. From a judgment in favor of plaintiff for the amount of the bond defendant has appealed.

Two contentions are made by appellant, being the same as those urged at the trial on the objection to the introduction of evidence by plaintiff: (1) that the repeal in 1927 of section1306 of the Penal Code without a saving clause destroyed plaintiff's right to maintain the action, and (2) that the clerk of the municipal court had no authority to fix the amount of the bond.

[1] Appellant does not question the form of the bond or the proceedings to enforce it, otherwise than as such *Page 489 method of procedure may have been changed by the repeal referred to. Sections 1287, 1305 and 1306 of the Penal Code were amended in 1927 (Stats. 1927, pp. 1385, 1386 and 1388), the amendments becoming effective July 29, 1927, which was some time after the bond was declared forfeited but before the complaint based upon it was filed. In view of appellant's contentions we will treat the bond as substantially complying with section 1287 of the Penal Code as it existed at the time the bond was executed. Said section provided that the bond should be substantially in the form therein set forth, and the amendment in question added to such form the following: "If the forfeiture of this bond be ordered by the court, judgment may be summarily made and entered forthwith against the said (naming the sureties and the defendant, if he be a party to the bond) for the amount of their respective undertakings herein, as provided by sections 1305 and1306 of the Penal Code." Section 1305 is the same as before the amendment, except that in addition to the defendant and bail appearing within ninety days after the forfeiture and satisfactorily excusing defendant's neglect, they must also "show to the satisfaction of the court that the absence of the defendant was not with the connivance of the bail". Section 1306 is so radically changed that nothing remains of the former enactment, the section as amended providing for the entry of a summary judgment against each bondsman named, in place of the action against the bail on their undertaking as theretofore provided. It is to be observed that the amendment adds to the form of the bond provided by section 1278 of the Penal Code an express consent to the entry of such summary judgment by the bondsman and also by "the defendant, if he be a party to the bond". Necessarily the bond would have to be signed by the surety, thereby making such consent effective. Here we have a very important change in the form of the bond, making effective by consent the summary judgment provided for in the amendment to section 1306. The added language shows that it was not intended by the legislature thereafter to apply to bonds executed before the amendment of section 1278 and not containing such consent. It reads: "If the forfeiture of this bond be ordered by this court," etc. The amendment of section 1306, providing for a summary judgment in accordance *Page 490 with such expressed consent, shows that it was the intention of the law-making body to provide a new scheme for reducing to judgment the obligation of a bondsman executing the new form of bond in case of a declaration of forfeiture, and it hardly needs the citation of authority to show that the legislature could not have deprived a bondsman of his day in court, which was necessary under the bonds executed prior to the amendment, even if they had made the summary method expressly applicable to bonds executed under section 1278 prior to the amendment. No saving clause was needed under the amendments as made.