State v. Emery

504 P.2d 1405 (1973)

STATE of Oregon, Respondent,
v.
Willard Mark EMERY, Defendant, and
Resolute Insurance Company, Appellant.

Court of Appeals of Oregon.

Submitted on Record and Briefs December 19, 1973. Decided January 12, 1973. Review Denied February 21, 1973.

L. M. Giovanini, Beaverton, for appellant.

Gary A. Rueter, Dist. Atty., McMinnville, for respondent.

Before SCHWAB, C.J., and LANGTRY and FOLEY, JJ.

LANGTRY, Judge.

This is an appeal from an order remitting $100 of $6,250 bail and awarding judgment for the balance of $6,150. The defendant-principal on the bond had failed to appear as ordered before the court, and the court had ordered forfeiture of the bond preceding the filing of the motion for remission. ORS 140.610 et seq.

Resolute Insurance Company through its attorney-in-fact, Wulf, executed the bail bond upon which the defendant was released. The defendant had been ordered to appear before the court on August 24, 1971 for execution of sentence. He failed to appear and a bench warrant for his arrest was issued. On September 23, 1971 the bail was ordered forfeited.

Resolute filed a motion to set aside the order of forfeiture. After hearing, the motion was denied. Resolute then filed a motion for remission of forfeiture pursuant to ORS 140.640. After hearing, that motion was denied except to the extent of $100, which represented Resolute's expenses involved.

(1). In its first assignment of error, Resolute argues that the court should have allowed its motion to set aside the forfeiture. Resolute's notice of appeal covers only the order and judgment on its motion for remission; hence, this assignment has no standing. Further, ORS 140.660 provides that when a bondsman applies for remission, as Resolute did here, "* * * [t]he application shall admit the forfeiture and the obligation of the bail to pay * * *."

(2). Resolute next claims that the trial court should have remitted more than $100 under authority of ORS 140.640.

In State v. Drake, 6 Or. App. 282, 487 P.2d 901 (1971), a case involving a similar issue, this court stated that "* * * the appellate court will not disturb the trial court's determination if that action does not reflect a palpable abuse of discretion. * * * The affidavit in the case at bar contains no such showing." 6 Or. App. at 286, 487 P.2d at 903. The record of the case at bar reveals no more reason than there was in Drake for a larger remission.

(3). Resolute claims that the bond's obligation was $2,650, not $6,250; therefore, the judgment should not have been more than $2,550. In the upper right-hand corner of the bond the figure $6,250 appears over the words "Appeal Bail Bond." The recitation reads in part "* * * Willard Emery * * * being duly admitted to bail in the sum of Six Thousand Two Hundred Fifty Dollars. * * * RESOLUTE * * * does hereby undertake that * * * [it] will pay * * * the sum of Two Thousand Six Hundred Fifty Dollars." Attached to the bail bond are two powers of attorney, one limited to $3,000 and the other limited to $5,000. The trial court ordered that Resolute pay $6,150, $6,250 less the $100 remission.

The bond is a contract between the state and the bondsman. Umatilla County v. United Bonding, 248 Or. 328, 434 P.2d 329 (1967); State v. Gardner, 29 Or. 254, 45 P. 753 (1896). In construing a contract the courts look to the four corners of the instrument to determine the intention of the parties. Bauman v. Bauman, 245 Or. 574, 577, 423 P.2d 181 (1967); Sproul et al. v. Gilbert et al., 226 Or. 392, 402, 359 P.2d 543 (1961).

Looking at all of the agreement and the attached powers of attorney it is clear that Wulf, the agent of Resolute, intended to commit his company to pay $6,250. There was no error.

Affirmed.