No. 86-149 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

STATE OF MONTANA, 

Plaintiff and Respondent, 

WAYNE EUGENE SUNDAY, and 

INTERNATIONAL FIDELITY INSURANCE 

COMPANY, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Sanders, 

The Honorable E. Gardner Brownlee, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

H. L. Garnaas; Garnaas, Hall & Pinsoneault, b is sou la, 

Monta.na 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Clay R. Smith, Asst. Attorney General, Helena 

Claude I. Burlingame, County Attorney, Thompson Falls, 

Montana 

Filed: 

Submitted on Briefs: Sept. 4, 1986 

Decided: December 1.6, 1 986 

-,-+-- 

Clerk 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Wayne Sunday and the International Fidelity Insurance 

Company appeal from an order of the District Court of the 

Twentieth Judicial District, in and for the County of Sanders, entering judgment on a forfeited bail bond. For the 

reasons stated below, we affirm that judgment. 

Wayne Sunday, defendant and appellant, was charged in 

Sanders County, State of Montana, with the crime of felony 

theft. On December 5, 1984, Judge Beitz set bond in the 

amount of $2000, with an appearance set for December 11. 

International Fidelity Insurance Company (Surety) issued a 

surety bond for $2000 through its agent, Sullivan & Hunt 

Agency (Agent) of Missoula, Montana. The court approved the 

bond and released Sunday. He subsequently appeared in District Court and pled not guilty to the charge. 

On May 14, 1985, Sunday appeared for an omnibus hearing. He was represented by Brian Smith. Subsequently, the 

court set the trial date for August 15. However, Sunday did 

not appear on that date, and Smith moved for a continuance. 

The court granted the motion and a new trial date was set for 

September 26. On that date, Sund-ay again failed to appear. 

The court granted Smith's motion for a continuance. The new 

trial date was set for October 22, 1985. When Sunday failed 

to appear at that time, the court declared the bond forfeited 

and issued a bench warrant for his arrest. 

On January 7, 1986, the Clerk of the District Court 

sent notice of the forfeiture to the Agent. The order forfeiting bond was signed by Judge McNeil on January 6. Upon 

receiving notice of forfeiture, the Agent, on behalf of the 

Surety, immediately began trying to locate Sunday. After an 
extensive search crossing state lines and even employing the 

assistance of the Internal Revenue Service, Sunday could not 

be located. 

On February 18, the State moved for entry of judgment 

on the forfeiture. The Surety subsequently moved for discharge of the forfeiture. On February 25, the court denied 

the Surety's motion and granted judgment to the State on the 

forfeited bond for $2000. 

Two issues are presented for our consideration: 

1. Where a defendant does not appear in court for a 

scheduled appearance, must the court declare a forfeiture of 

his bond immediately or lose jurisdiction to declare a forfeiture thereafter? 

2. Where a court does not mail notice of the order of 

forfeiture to the surety until seventy-seven days after the 

declaration of forfeiture, does it lose jurisdiction to enter 

judgment on the forfeiture thereafter? 

Appellants first contend that the District Court was 

required to declare the bond forfeited on the date of defendant's first non-appearance. Since the court did not declare 

a forfeiture on that date, it lost jurisdiction to do so at 

anytime afterwards. 

The controlling statute on this issue is $ 46-9-503, 

MCA. Section (1) provides: 

If the accused does not comply with the 

conditions of the bail bond, the court 

having jurisdiction shall enter an order 

declaring the bail to be forfeited. 

There is nothing in this statute that requires a court to 

declare a forfeiture immediately upon a defendant's first 
non-appearance. Furthermore, there is no provision which 

releases a surety from the ultimate liability on a bond prior 

to the conditions of bail being performed and the defendant 

being discharged. See S 46-9-502, MCA. To require a court 

to declare forfeiture immediately upon a breach of a condition of bail would unnecessarily straightjacket the court by 

a rule neither mandated by statute nor required by policy. 

Federal Rule of Criminal Procedure 46 (e) (1) is substantially the same as Montana's § 46-9-503(1). That rule 

states: "If there is a breach of condition of a bond, the 

district court shall declare a forfeiture of the bail." In 

United States v. Navarrete-Martinez (10th Cir. 1985), 776 

F.2d 887, the court was faced with the same argument being 

raised by appellants here. In summarily dismissing the 

surety's contention, the court held: 

Nothing in the rule, however, requires 

the trial court to declare a forfeiture 

immediately upon the defendant's failure 

to appear. Therefore this argument is 

without merit. 

Navarrete-Martinez, 776 F.2d at 888. See also Appearance 

Bond Surety v. United States (8th Cir. 1980), 622 F.2d 334. 

Rather than being prejudiced by the court's action, as 

appellants contend, the Surety was actually helped. Had the 

court declared forfeiture immediately, the Surety would have 

been absolutely liable on the bond with only thirty days 

within which to locate Sunday. However, because the court 

continued the trial date, the Surety had more time to look 

for defendant. Likewise, the State was benefited because the 

Surety had more incentive to locate defendant prior to forfeiture than it had afterwards. Thus, the public interest in 

obtaining the appea.rance of the defendant was better served. 
We hold that the District Court had jurisdi-ction to 

declare forfeiture of the bond when it did so. 

The court declared the bond forfeited on October 22, 

1985. However, it waited until January 7, 1986, to forward 

notice of the forfeiture to the Agent--a delay of seventyseven days. Appellants contend that this delay violated the 

requirements of S 46-9-503, MCA, because notice was not 

mailed "forthwith" and that the court lost jurisdiction to 

enter judgment on the forfeiture because the proper procedure 

was not followed. Appellants further contend that the Surety 

was prevented from producing defendant after his first 

non-appearance because it was not notified of such 

non-appearance by the court. 

Section 46-9-503 is the controlling statute on this 

issue also. It provides in relevant part: 

(2) If such forfeiture is declared by a 

district court, notice of such order of 

forfeiture shall be mailed forthwith by 

the clerk of the court to the accused 

and his sureties at their last known 

address. 

(3) If at any time within 30 days after 

the forfeiture the defendant or his bail 

appear and satisfactorily excuse his 

negligence or failure to comply with the 

conditions of the bail, the court, in 

its discretion, may direct the forfeiture of the bail to be discharged upon 

such terms as may be just. 

(4) If such forfeiture is declared by a 

district court and if the forfeiture is 

not discharged as provided in this 

section, the court shall enter judgment 

for the state against the accused and 

his sureties for the amount of the bail 

and costs of the proceedings. 

At the outset, it should be noted that there is a 

distinction between forfeiture and judgment on the 
forfeiture. Once forfeiture of the bond is declared by the 

court, the surety becomes liable for payment on the bond 

unless, within thirty days from such declaration, the surety 

or the defendant appear and satisfactorily excuse the defendant's failure to comply with the conditions of bail. At 

that point, the surety cannot be compelled by the State to 

pay the bond. However, once judgment is entered on the 

forfeiture, it becomes binding on the surety, and the State 

can seek execution of its judgment. This distinction is 

important when considering whether the requirements of due 

process have been met. 

Section 46-9-503 requires only that notice of forfeiture be mailed to an accused and his surety. It does not 

require a court to notify the surety of a defendant's 

non-appearance. Since the Surety assumed the duty of ensuring Sunday's appearance, it was presumed to know of his 

whereabouts. Therefore, it was not necessary for the court 

to notify the Surety of Sunday's non-appearance. See United 

States v. Roher (5th Cir. 1983), 706 F.2d 725; United States 

v. Craft (11th Cir. 1985), 763 F.2d 402. Appellantsbontention on this point is without merit. 

Appellants are correct, however, in their assertion 

that the court did not mail notice of the order of forfeiture 

"forthwith," as required by the statute. Upon declaring the 

bond forfeited, the proper procedure would have been for the 

court to mail notice of the order to appellants without 

delay. Had that been the case, the Surety or the defendant 

would have had thirty days to appear and excuse defendant's 

breach. Nevertheless, even though the court did not send 

notice to appellants when it should have, it did not lose 

jurisdiction to enter judgment on the forfeiture. As long as 
the requirements of the statute and the mandates of due 

process were met, the judgment against appellants was valid. 

Notice of forfeiture was mailed to appellants on January 7, 1986. On February 25, 1986, the court entered judgment on the forfeiture for the State. Thus, a period of more 

than thirty days elapsed between notice of forfeiture and 

judgment on the forfeiture. This procedure substantially met 

the requirements of § 46-9-503 as well as the requirements of 

due process. As in the first issue, the Surety was not 

prejudiced by the court's action; rather, it was benefited. 

It had an extra three months within which to locate defendant 

and discharge the forfeiture before the judgment was entered. 

Any error that resulted accrued to appellants' advantage. 

We concur: