No. 13735 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

WILSHIRE INSURANCE COIqTANY 

a California Corporation, and 

GENE STREITZ, 

Petitioners and Respondents, 

and Cross-Appellant, 

JANICE S. CARRINGTON, Justice of the 

Peace, Missoula County, Montana, 

Respondent and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Edward Dussault, Judge presidinq. 

Counsel of Record: 

For Appellant: 

Robert L. Deschamps 111, argued, County Attorney, 

Missoula, Montana 

For Respondents: 

Skelton and Knight, Missoula, Montana 

Robert Skleton argued, Missoula, Montana 

Submitted: October 3, 1977 

Decided : 

OCT 24 19iQ 
Mr. Justice John Conway Harrison delivered the Opinion 

of the Court: 

Petitioners, Wilshire Insurance Company (Wilshire) 

and Gene Streitz, respondents herein, brought an action for 

a writ of mandamus seeking to require appellant Missoula 

County Justice of the Peace Janice S. Carrington, to accept 

respondents' bail bonds. Following a hearing the district, 

Missoula County, granted the requested writ and in addition 

awarded $175 in damages and attorney fees of $500 to respondents. 

Appellant thereafter moved for an amendment of judgment 

seeking to have the award of damages and attorney fees deleted. 

The court amended the judgment by deleting the award of 

attorney fees only. Appellant appeals from the amended 

judgment. ~espondents' crossappeal from that portion of the 

court's order denying attorney fees has been abandoned on 

this appeal. 

Wilshire is a California Corporation authorized by the 

Montana State Commissioner of Insurance to do business in 

Montana as a commercial surety. Streitz is a licensed agent 

of Wilshire. They have provided bail bonds for criminal 

defendants in the court of Justice Carrington for some time. 

On at least one occasion prior to the present case, respondents 

were directed in writing to pay over a bond immediately upon 

the bonded defendant's failure to appear, and were advised it 

was Justice Carrington's policy that this be done in future 

cases. 
On December 8, 1976, respondents supplied bail bonds 

in the amount of $2000 on each of two criminal defendants. 

Before bonding out of jail, defendants were notified by the 

sheriff to appear on the morning of December 9, 1976. 

Defendants failed to appear. Justice Carrington immediately 

entered an order forfeiting the bonds and orally notified 

respondents the bonds were immediately due and payable. 

Respondents advised the money would be paid by 4:00 p.m. 

on December 10. However, no payment was made. Thereafter, 

Justice Carrington and William Monger, Missoula County Justice 

of the Peace, Division 2, entered orders directing the sheriff 

to accept no further bonds from respondents. 

Streitz received no written notice of the forfeiture 

until December 13. Later that day, he unsuccessfully attempted 

to obtain Justice Carrington' s approval for two additional 

bonds, thereby failing to collect at least $175 in bonding 

fees. This action filed on December 14 ensued. Respondents 

have not yet paid the $4000 in forfeited bonds. 

The issues presented on this appeal are: 

1. May a Montana justice of the peace court order that 

forfeited surety bonds be paid immediately? 

2. May such court refuse to accept further bonds from 

a surety until its previously forfeited bonds are paid? 

Issue 1. Immediate payment upon forfeiture. 

The exclusive procedure to be followed upon a failure of 

an accused to appear in court or otherwise comply with the 

conditions of the bail bond is prescribed by sections 95-1116 

and 95-1117, R.C.M. 1947: 
"95-1116. Conditions of bail - when performed - when 

not performed. 

"(b) 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. 

"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. 

"(c) If at any time within thirty (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. 

"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 the costs of the proceedings. 11 

"95-1117. Disposition of judgment and execution. 

"(c) When judgment is entered in favor of the 

state and against the sureties or the surety company 

or when the forfeiture has not been discharged, execution may be issued against che sureties or the surety 

company in the same manner as executions in civil 

actions. It 

Appellant takes the position the statutory scheme is of 

dual application. That is, the statutes distinguish between 

district courts and other courts, such as justice courts, holding 

the former to a stricter standard of written notification of 

forfeiture and a thirty day "waiting period" during which the 

forfeiture may be discharged, prior to automatic entry of 

judgment and an ensuing execution. Justice courts, she argues, 

are subject to no such restrictions, and need only enter an 

order of forfeiture upon noncompliance as a precondition to 

immediate payment of the face amount of the bond. We find 

such a position untenable. 
.I ' 

We hold statutory procedures detailed in sections %-I116 

and 95-1117 are equally applicable to bond forfeiture proceedings 

in 3ustice courts. An order requiring imrnedia k payment on the 

forfeited bond is tantamount to an immediate and automatic 

judgment not provided for by statute. Such a procedure would 

afford justice courts broad powers and an unlimited range of 

discretion not enjoyed by district courts. We note in this 

regard that district courts, as contrasted with justice courts, 

are courts of record staffed by judges professionally trained 

in the practice and principles of law and legal procedure. Such 

judges are, by virtue of sections 95-1116 and 95-1117, held to 

a standard of accountability. Such a standard is no less 

'applicable to justice courts. 

Referring to various principles and statutes pertaining 

to contract law, appellant maintains a surety bond is in the 

nature of a contract. Contractual terms, if capable of being 

performed instantly, must be so performed. While a bond is in 

the nature of a contract, a procedure for forfeiture and enforcement mandated by statute is exclusive and must be followed. 

See: 8 Am Jr 2d Bail and Recognizance, 55 139, et.seq. Appellant's 

argument in this regard is without merit. 

Finally, appellant offers policy reasons in support of 

her position. She argues the traditional procedure whereby defendants charged with minor offenses typically forfeit bonds in 

justice court, in lieu of an appearance, would be frustrated 

and substantial delay in the administration of justice would 

result from imposition of the requirements of sections 95-1116 

and 95-1117. This argument is not compelling. The Revised 

Commission Comment to section 95-1103, R.C.M. 1947, indicates 

the procedure for determination, acceptance and forfeiture of 
bail for certain minor offenses is to be distinguished from 

the forfeiture procedures outlined in sections 95-1116 and 

95-1117. The usually speedy forfeiture procedure advocated 

by appellant is in no manner impaired by our holding in this 

case. 

Issue 2. Refusal to accept further bonds. 

Relying primarily upon broad textual authority, appellant 

asserts a justice court has the discretion to refuse a surety's 

tendered bonds, although that surety is authorized to do 

business by the state commissioner of insurance and has in 

all other respects complied with statutes regulating the bail 

bond bus ine s s . 

Article 11, Section 21, 1972 Montana Constitution 

specifically provides : 

"All persons shall be bailable by sufficient 

sureties except for capital offenses, when the 

proof is evident or the presumption great. 1' 

(Emphasis added. ) 

In addition, section 40-4501, R.C.M. 1947, provides, in part: 

"A surety insurer authorized as such under this 

code shall have the power to b-ecome the surety 

on bonds and undertakings required by law * * *.I1 

(Emphasis added.) 

We hold that the above provisions, taken separately or 

together, mandate approval by courts of all bonds offered by 

those commercial sureties properly authorized to do business 

in this state. 

Here, it is not disputed that respondents were in compliance with the pertinent provisions of law and were authorized 

to do business as commercial sureties in the state of Montana. 

We conclude appellant's refusal to accept respondents' bonds 
was error. Suchbonds should be approved in all similar 

cases. 

The amended judgment granting respondents ' requested 

writ of mandate is affirmed. 

1 

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~h17f Justice