Schwoerke v. State ex rel. Gibbons

IRWIN, Justice

(dissenting).

I concur in the views expressed in the dissenting opinion of Justice JACKSON as to the applicability in the case at bar of Title 22 O.S.1961 § 1108, and the overruling of Selby v. State ex rel. Amis, Okl., 302 P.2d 775. However, in my judgment, the rule of law as set forth by Justice JACKSON should not be applicable in the case at bar but be prospective only. My opinion is based upon the following reasons.

On the date the trial court entered the Order upon its minutes that the bond be forfeited, the rule of law announced in the case of Selby v. State ex rel. Amis, supra, was the applicable rule of law as announced by this Court. In that case we held:

“In suit to recover on alleged forfeited bail bond where defendant specifically denies forfeiture, burden is upon plaintiff to establish by competent evidence that such forfeiture has been ordered and proper entry thereof made in the journal of the court.

“Where burden is upon plaintiff under circumstances stated in paragraph one, entries made by the court clerk in appearance docket of case in which forfeiture is alleged to have been ordered are not alone sufficient to establish that bail bond has been forfeited.”

Under the above case, the evidence in the instant action would be insufficient to establish that the bail bond had been forfeited for the reason a proper entry of the forfeiture had not been made “in the journal of the court”. If however, we overrule the Selby case and make it applicable in the case at bar the entry on the trial court’s minutes was sufficient to establish that the bail bond had been forfeited. Under such procedure, plaintiff in error, would be deprived of his statutory rights under Title 22 O.S.1961 § 1108, which provides that, “But, if at any time before the final adjournment of court the defendant or his bail appear and satisfactorily excuse his neglect, the court may direct the forfeiture to be discharged upon such terms as may be just”, and would also be deprived of his right of appeal if the trial court refused to “direct forfeiture to be discharged”. In other words, under the Selby case, the proceedings in the instant action were not sufficient to establish the forfeiture of the bond and would not have been sufficient until entry of the forfeiture had been made “in the journal of the court”. Therefore, to overrule the Selby case and make a different ruling applicable in the instant case would deprive plaintiff in error the right to appear and seek to have the forfeiture discharged and his right of appeal in case of an adverse ruling.

The forfeiture of a bond relates to procedural law and not to substantive law. In 21 C.J.S. Courts § 194, page 327, it is stated :

“ * * * if the overruled decision is one dealing with procedural law or adjective law the effect of the subsequent overruling decision is prospective only; but if the overruled decision is one dealing with substantive law the effect of the subsequent overruling decision is retroactive.”

See also Curtis v. Barby, Old., 366 P.2d 616.

For the foregoing reasons, I dissent to the opinion promulgated by a majority of my associates and concur in the views expressed by Justice JACKSON, except however, I think such rule should be prospective only.

I am authorized to state that WILLIAMS, J., concurs in the views herein expressed.