Seaboard Surety Corp. of America v. Municipal Court

PRESTON, J.

The petition for writ of mandate herein is denied. The application involves solely a construction of .section 1305 of the Penal Code, as amended in 1927 (Stats. 1927, p. 1386, chap. 735). The legislature at that time extended the period from twenty to ninety days within which the court may direct the forfeiture of the undertaking to be discharged, but at the same time added a provision respecting the surety upon the bail bond. After

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amendment, the language of the section in this connection was as follows: “But if at any time within ninety days after such entry in the minutes, the defendant and his bail appear and satisfactorily excuse his neglect,

and show to the satisfaction of the court that the absence of the defendant was not with the connivance of the bail,

the court may direct the forfeiture of the undertaking or the deposit to be discharged upon such terms as may be just.”

Petitioner asserts that we should ascribe to the word “and,” as it appears before the word “show” in the above quotation, the meaning of “or.” The effect of this construction, if allowed, would be, not to provide that both defendant and bail be without default, but to permit relief where defendant’s absence was wilful so long as the bail was acting in good faith. In other words, petitioner’s contention is that a surety, if acting in good faith, has ninety days after the failure of a defendant, whether excusable or not, to appear, within which to produce him and be relieved from a forfeiture of the undertaking. We are pointed to such cases as.

Washburn

v.

Lyons,

97 Cal. 314 [32 Pac. 310],

People

v.

Pool,

27 Cal. 573, 581, and

Abbey

v.