168 So. 2d 304 | Miss. | 1964
ON MOTION OP SURETY ON BAIL BOND TO SET ASIDE JUDGMENT NISI
William Harrison Corn was indicted, tried and convicted in the Circuit Court of Hancock County on a charge of felonious possession of burglary tools and was sentenced to serve four years in the state penitentiary. Prom that judgment he prosecuted an appeal to this Court, and executed an appearance bond in the amount of $5,000 with United Bonding Insurance Company as surety, and was released from custody. The appeal was heard by this Court at the March 1964 Term, and on
On the return date of the writ of scire facias a motion was filed by the attorneys for the appellant Corn and United Bonding Insurance Company, surety on his appeal bond, for an order setting aside the judgment nisi theretofore entered against the surety on the ground that the appellant Corn had been arrested in the State of Georgia, on February 13, 1964, and committed to the Fulton County jail on criminal charges preferred against him in the Criminal Court of Fulton County and the Superior Court of said county; that on March 5, 1964,
In their motion to set aside the judgment nisi the attorneys for the appellant Corn and the surety on his appearance bond have asked (1) that the judgment nisi heretofore entered in this cause be set aside, or in the alternative, (2) that the judgment nisi be abated until such time as the said Corn may be released and discharged from the Georgia State Prison. The attorneys in their brief have cited several cases from other jurisdictions in support of their request that the judgment nisi be set aside or in the alternative stayed until such time as the appellant Corn may be released from the Georgia State Prison.
In discussing the subject of forfeitures on bail bonds such as we have here, the textwriter in 8 Am. Jur. 2d 860, Bail and Recognizance, § 139, says: "If the surety on a bail bond fails to deliver his principal into the custody of the proper officer of the law, or to procure his attendance in court, as the bond requires, the liability of the surety for the penalty of the bond becomes absolute and the bond should be forfeited, unless the sureties can plead and prove facts excusing the liability. Where there is a breach of conditions of the bond, the court has a duty to declare a forfeiture and there is no duty on the part of the state to prove damages.”
According to the overwhelming weight of authority in other jurisdictions, both state and Federal, the surety on an appeal bond is not entitled to be relieved of its obligation on such bond unless it can show that the performance of its undertaking has been rendered impossible or excusable (a) by an Act of God; (b) by an act of the obligee; or (c) by an act of law. State v. Pelley (1943), 222 N.C. 684, 24 S.E. 2d 635.
The incarceration of the principal in a different jurisdiction for a second and different offense against the laws of that jurisdiction, even where the principal is prevented from appearing to answer his bail by such incarceration, does not exonerate the surety. This view is fortified by the great weight of authority, both in state and federal courts. Weber v. United States (1929), 32 F. 2d 110; and cases cited.
The facts pleaded by the surety in this case show that its principal, the appellant Corn, was prevented from appearing not by an Act of God, not by an act of the obligee, not by an act of law, properly viewed, but by reason of his own voluntary act, which rendered him amenable to the criminal laws of another jurisdiction.
Corn’s own conduct prevented the fulfillment of his obligation to surrender himself to the Sheriff of Hancock County, and for his default the surety obligated itself to pay the penalty in the bond. In our opinion no sufficient reason has been offered which would justify this Court in setting aside the forfeiture or in abating the judgment nisi. The liability of the surety for the penalty on the bond became absolute when the surety failed to deliver its principal into the
Motion to set aside judgment nisi, or in the alternative to abate judgment nisi, overruled, and judgment nisi made final.