12 P.2d 1068 | Cal. Ct. App. | 1932
This is an appeal from an order denying a motion to set aside a summary judgment entered upon a bail bond. The bond was executed by this appellant to secure the presence of a certain defendant when wanted for trial in the Superior Court of San Diego County. The bond contained the following paragraph:
"If the forfeiture of this bond be ordered by the court, judgment may be summarily made and entered forthwith *561
against the said Seaboard Surety Corporation of America, a corporation, and the said defendant, if he be a party to the bond, for the amount of their respective undertakings herein, as provided by sections
The defendant in question not appearing when the case came on for trial on September 2, 1930, the court, on motion, declared the bail bond forfeited. A motion was later filed by this appellant asking for an order setting aside the forfeiture, which motion was denied on January 5, 1931. On January 10, 1931, a summary judgment was entered, based upon the provisions of the bond and the terms of the statutes. On February 10, 1931, this appellant filed a motion to vacate and set aside this summary judgment, which motion, after a hearing, was denied on March 14, 1931. This appeal is from the order denying that motion.
[1] It has been held that judgments of the nature of the one the appellant here seeks to set aside, being consent judgments, are not subject to appeal (People v. Hodges,
In People v. Aymar,
[2] Appellant's first contention is that since it executed this bond in reliance upon the provisions of the amendment now held to be void, the stipulation for a summary judgment contained in the bond is void for failure of consideration. The consideration for a bail bond, as between the People and the surety thereon, is the release of the defendant charged with crime (People v. McReynolds,
[3] The second and main contention of appellant is that, since a bail bond is a statutory bond, and since a bond founded upon an unconstitutional statute is void, this bond, having been made in conformity with section
It may first be observed that while this is a statutory bond, it is not created by or dependent upon section
"But the provisions of the amendment are clearly severable from the provisions of the section in force prior to the amendment and continued in force, for there is no indication in the statute or otherwise that the legislature would not have left the section as enacted in 1927 undisturbed if its attempt to relieve some arbitrarily selected sureties from the rigors of a forfeiture had not been undertaken. We are not apprehensive, therefore, that bail bonds in pending proceedings will be jeopardized by the determination herein, as suggested by counsel for the petitioner."
The general rule as to severability of different portions of a statute in relation to their constitutionality is thus stated in 5 California Jurisprudence, at page 643:
"It is a general rule supported by an unbroken line of decisions that a provision in or a part of an act may be unconstitutional and beyond the power of the legislature to enact, and still the whole act may not be void. The accepted doctrine in such case is that the constitutional portions of the statute may stand alone and remain in force if they can be separated from the portions which are void. The unconstitutional provisions will not vitiate the whole act, unless they enter so entirely into the scope and design of the law, that *564 it would be impossible to maintain it, without such obnoxious provisions. However, if the unconstitutional provisions of a statute or ordinance are inseparable from the main body thereof, it follows that the whole statute or ordinance is void."
Applying this rule to the case before us, we think the provisions attempted to be added to section
It has been held that just such an order as the one here appealed from is no more appealable than was the judgment which the order refused to set aside (People v. Pacific IndemnityCo.,
The order appealed from is affirmed.
Jennings, J., and Scovel, J., pro tem., concurred.