People v. Harbin , 88 Mich. App. 341 ( 1979 )

88 Mich. App. 341 (1979) 276 N.W.2d 607

PEOPLE
v.
HARBIN.
IN THE MATTER OF INTERNATIONAL FIDELITY INSURANCE COMPANY.

Docket No. 77-2072.

Michigan Court of Appeals.

Decided February 5, 1979.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and David R. Lady, Assistant Prosecuting Attorney, for the people.

Norman L. Zemke and Peter J. Lyons, for International Fidelity Insurance Company.

Before: V.J. BRENNAN, P.J., and ALLEN and P.F. O'CONNELL,^[*] JJ.

V.J. BRENNAN, P.J.

The case at bar presents one pertinent inquiry not heretofore addressed in this state. We must decide the force and effect of a bail bond provision which allows the surety's discharge without delivery of the principal.

The facts giving rise to this appeal are relatively straightforward. On December 14, 1974, International Fidelity Insurance Co., Inc., (hereafter International) filed a bail bond recognizance assuring the appearance of Walter T. Harbin at any and all arraignments, hearings, motions, preliminary examinations and trials (including any adjournments and continuances) in both district and circuit court. The bonding contract further provided that the bond was to remain in full force and effect for "a period of one year".

The trial date which was originally set for October 14, 1975, was changed to March 28, 1977. When Harbin failed to appear for trial a bench warrant was issued for his arrest and the people filed a petition requesting that the bond be declared forfeited.

A hearing was held on the petition and the trial court ordered the forfeiture of the bond. International appeals by right the order of forfeiture.

International argues that its liability, being strictly limited to the terms of the bond, was thus discharged when the one-year term expired. We disagree. Although a bail bond contract is to be narrowly construed, applicable state law must also be considered in determining the surety's liability.

In People v Havey, 382 Mich. 58, 63; 167 NW2d 308 (1969), the Michigan Supreme Court set forth the nature of a bail bond agreement as follows:

"``A man's bail are his jailors, and they are bound to have him as much in the power of the court as if he were within its prison walls. Without appearance, or an order of court to that effect, they are never discharged.'" (Emphasis added.) See, also, Dimmers v Hillsdale Circuit Judge, 289 Mich. 482; 286 N.W. 798 (1939), People v Brow, 253 Mich. 140; 234 N.W. 117 (1931).

Further, MCL 765.26; MSA 28.913 provides for the surety's release from liability as follows:

"In all criminal cases where any person or persons have entered into any recognizance for the personal appearance of another and such bail and surety shall afterwards desire to be relieved from his responsibility, he may with or without assistance, arrest the accused and deliver him at the jail or to the sheriff of said county."

Accordingly, we find the essence of a bail bond contract to be an assurance of the principal's appearance and the surety is not released on the contract until the principal is delivered to the county authorities.^[1] Therefore we hold any bail bond provision which calls for the surety's discharge absent delivery of the principal to be null and void. In the present case, since Harbin was not delivered by the surety at the end of the one-year term, the bond was not discharged.

The lower court's order forfeiting International's bond is affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] The appellant has not cited nor have we found any jurisdiction which allows discharge by the terms of the contract without delivery of the principal. We note that a surety may be excused when the principal fails to appear due to "an act of God", "an act of the law" or "an act of the public enemy". People v Glumb, 42 Mich. App. 166, 168; 201 NW2d 282 (1972).