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Docket Number

No. 40562.

Attorney(S)

A. G. Williams, New Orleans, for appellant. Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Severn T. Darden, Dist. Atty., Matthew S. Braniff, Asst. Dist. Atty., New Orleans, for appellee.

Judges

McCALEB, Justice.

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Smart Summary

Summary of Opinion: STATE v. MYERS ET AL., No. 40562 (La. Mar. 24, 1952; Rehearing Denied Apr. 28, 1952)

Factual and Procedural Background

Joseph F. Williams was surety on a bail bond dated December 9, 1948, conditioned on the appearance of Dallas Myers in the Criminal District Court to answer a charge of violating Article 34 of the Criminal Code (LSA-R.S. 14:34). A judgment forfeiting the bond was entered because the principal failed to appear on August 10, 1951, when called for arraignment. Williams appeals the forfeiture, advancing grounds that the bond was void because the affidavit required of a surety was legally deficient and that he (and later, on rehearing, counsel contends the accused) were not properly notified of the arraignment. The trial court's forfeiture judgment is the subject of this appeal to the Supreme Court of Louisiana.

Legal Issues Presented

Whether the bail bond is void and the bond clerk lacked authority to accept it because the surety's affidavit did not include the statutory phrase "liable to seizure" as required by LSA-R.S. 15:103.
Whether the forfeiture judgment must be set aside because the surety (and, as argued on rehearing, the accused) was not served with notice of the arraignment called by the court.

Arguments of the Parties

Appellant's Arguments

The bond is prohibited by law because appellant's affidavit, made when signing as surety, failed to swear that after payment of debts he owned property "liable to seizure" in an amount equal to the bond as required by LSA-R.S. 15:103; therefore the bond clerk had no authority to accept the bond.
The forfeiture should be set aside because appellant was not served with notice that the principal was called for arraignment. On application for rehearing counsel additionally contended that the accused himself was not notified to appear for arraignment and that the sheriff should have made domiciliary service under LSA-R.S. 15:105 when the accused's address was shown on the bond.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Williamson, 135 La. 662, 65 So. 877	Authority for estoppel against a surety denying irregularities in bond or proceedings when the surety was not harmed.	The court relied on this authority to hold appellant estopped from attacking the bond's irregularity because the statutory oath was enacted to protect the State and appellant suffered no harm from the alleged insufficiency.
State v. Doyle, 42 La. Ann. 640, 7 So. 699	Support for the principle that a surety may be estopped from denying irregularities in the bond process.	Used as supporting authority, cited with State v. Williamson, to justify refusing to set aside forfeiture based on alleged oath deficiency.
Sartorius v. Dawson, 13 La. Ann. 111	Authority indicating no requirement that a surety be given notice of arraignment or trial.	Cited by the court to support the conclusion that LSA-R.S. 15:105 does not impose a duty to notify the surety of arraignment or trial and that no statutory notice to the surety was required.
State v. Brown, 13 La. Ann. 266	Authority indicating no requirement that surety be notified of arraignment or trial.	Relied upon, with other cases, to show there is no legal requirement that the surety be notified of arraignment or trial.
Langridge v. Judge of Twenty First Judicial District Court, 46 La. Ann. 29, 14 So. 427	Authority indicating no requirement that surety be notified of arraignment or trial.	Used to reinforce the court's conclusion that the law does not require notice of arraignment or trial to the surety.

Court's Reasoning and Analysis

The court addressed the two principal contentions in turn.

On the alleged statutory deficiency in the surety's affidavit (LSA-R.S. 15:103): the court observed that the affidavit "substantially, although not entirely, conforms" to the statutory oath. More importantly, the court emphasized that the oath requirement in LSA-R.S. 15:103 was enacted to protect the State; since appellant was not harmed by the omission of the exact statutory phrase ("liable to seizure"), the irregularity did not affect the bond's validity or the surety's legal responsibility. Relying on State v. Williamson and State v. Doyle, the court held appellant estopped from attacking the irregularity of the bond or the proceedings that allowed it.

On the lack-of-notice contention (LSA-R.S. 15:105): the court explained that the statutory provision requiring a surety to designate a domicile for service does not itself create a right to a particular type of notice such as notice of arraignment or trial to the surety. The bond's condition is the principal's appearance in court; there is no statutory requirement that the surety be notified of arraignment or trial. The court cited Sartorius v. Dawson, State v. Brown, and Langridge v. Judge of Twenty First Judicial District Court to support that conclusion.

On rehearing the court clarified that the original opinion had misread appellant's complaint as asserting lack of notice to the surety; the rehearing record shows the sheriff attempted service of the notice of arraignment on the accused at the address shown (1211 S. Rampart Street) and was informed by occupants that the accused had moved to parts unknown. The sheriff's return noted he was unable to serve the notice because the accused was not found. Appellant's argument on rehearing—that the sheriff should have performed domiciliary service under LSA-R.S. 15:105—was rejected. The court reasoned LSA-R.S. 15:105 is applicable primarily to sureties on appearance bonds and, even if applied to an accused, contains nothing requiring the sheriff to make a vain domiciliary service when informed the person no longer resides at the given address.

Holding and Implications

The judgment appealed from is affirmed.

Implications: The direct effect is that the forfeiture judgment against the bond and surety stands. The court treated the affidavit omission as a non-prejudicial irregularity that does not void the bond and held there is no statutory requirement that a surety be notified of an accused's arraignment. The opinion does not announce broader legal changes beyond affirming the forfeiture and clarifying that a sheriff need not attempt futile domiciliary service when the party is known to have moved.

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STATE v. MYERS ET AL.

McCALEB, Justice.

Joseph F. Williams, surety on a bail bond executed on December 9th 1948, conditioned upon the appearance of one Dallas Myers in the Criminal District Court to answer a charge of violating Article 34 of the Criminal Code, LSA-R.S. 14:34, is appealing from a judgment forfeiting the bond for failure of the principal to appear on August 10th 1951, when called for arraignment. He claims that the forfeiture should be set aside because (1) the bond was prohibited by law and the bond clerk was therefore without authority to accept it and (2) because he was not served with notice that the principal was called for arraignment.

The first point is founded on the theory that, since, in the affidavit appellant made at the time he signed the bail bond as surety, he was not required to swear that, after payment of all of his debts, he was the owner of property liable to seizure worth $750 (the amount of the bond) but only that he was worth $750 in movable and immovable property after paying all his just debts and liabilities, the bond is void being violative of Article 103 of the Code of Criminal Procedure, LSA-R.S. 15:103, and the bond clerk was without authority to accept it.

The pertinent portion of the statute relied upon, LSA-R.S. 15:103. provides: "No person shall be permitted to sign any bond required by law who shall not swear that after the payment of all of his debts he is owner in his own right of property, real or personal or both, liable to seizure, in an amount equal to that named in said bond, * * *." (Italics ours.)
LSA-R.S. 15:104 declares, in part:
"Every officer authorized to accept any bond shall have authority to administer any oath required by law to be taken by the person signing such bond; * * *."

We find no merit in the contention. Aside from the fact that the affidavit executed by appellant substantially, although not entirely, conforms to the oath provided for by LSA-R.S. 15:103, the assailed irregularity did not affect either the validity of the bond or appellant's legal responsibility thereunder. The provisions of LSA-R.S. 15:103, relative to the essentials of the oath required of sureties on bail bonds, were obviously enacted in the interest and for the protection of the State; appellant was not harmed by the alleged insufficiency of the affidavit and he is, therefore, estopped from denying either "the irregularity of the bond or of the proceedings under which it was allowed." State v. Williamson, 135 La. 662, 65 So. 877, citing State v. Doyle, 42 La. Ann. 640, 7 So. 699 and Marr's Criminal Jurisprudence, 1st Ed. Section 206.

Nor do we find substance in appellant's other complaint that he was entitled to notice of Myers' arraignment. Whereas LSA-R.S. 15:105, depended on by appellant, prescribes that the surety designate, under his signature on the bond, the address at which he makes his domicile for all purposes connected with the bond, including the service of process or notice issued, out of the court, the section does not provide for the giving of any particular notice, such as notice of arraignment or trial to the surety. The bond is conditioned upon the appearance of the principal in the Criminal District Court to answer the charges against him and there is no requirement of law that the surety be notified either of arraignment or trial. Sartorius v. Dawson, 13 La. Ann. 111; State v. Brown, 13 La. Ann. 266 and Langridge v. Judge of Twenty First Judicial District Court, 46 La. Ann. 29, 14 So. 427. Albeit, LSA-R.S. 15:108, which provides the procedure for forfeiture of bail bonds before the district courts, merely declares that, if the person charged fails to appear and answer when called, "the judge shall, on motion of the district attorney, forthwith enter up judgment decreeing the forfeiture of the bond and against such person and his sureties in solido for the full amount thereof."

The judgment appealed from is affirmed.

McCALEB, Justice.

On Application for Rehearing.

[7] PER CURIAM.

In an application for rehearing, appellant complains, among other things, that the court failed to pass upon his contention that the judgment of forfeiture is a nullity because the accused was not notified to appear for arraignment. The original opinion does take notice of appellant's contention, but reveals that we were under the erroneous impression that the complaint was directed to an asserted lack of notice to appellant as surety.

The record shows that a notice of arraignment issued to the accused, Dallas Myers, at his given address, 1211 S. Rampart Street, New Orleans, Louisiana, and that, when the sheriff attempted to serve him at that address, he was notified by the parties living there that Myers had moved to parts unknown. The sheriff therefore noted on his return that he was unable to serve the notice of arraignment because accused was not found.

It is the contention of counsel for appellant that the sheriff should have made a domiciliary service in view of LSA-R.S. 15:105, requiring that at the time any person signs an appearance bond he shall be required to indicate his domicile, which is "conclusively presumed to continue for every purpose connected with the bond."

We find no merit in this argument. In the first place, it seems evident that LSA-R.S. 15:105 is applicable only to the surety on an appearance bond. But, even if we assume that an accused is included, there is nothing in the statute which indicates that the sheriff is required to make a vain and useless domiciliary service when he is informed that the party no longer lives at the given address.

Finding that none of the other complaints is well founded, the application for rehearing is refused.

STATE v. MYERS