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Oregon v. Emery

January 12, 1973

STATE OF OREGON, RESPONDENT,
v.
WILLARD MARK EMERY, DEFENDANT, AND RESOLUTE INSURANCE COMPANY, APPELLANT



Appeal from Circuit Court, Yamhill County. Kurt C. Rossman, Judge. No. 27812.

L. M. Giovanini, Beaverton, for appellant.

Gary A. Rueter, McMinnville, for respondent.

Langtry, Judge. Schwab, Chief Judge, and Foley, Judge.

Langtry

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 P2d 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. 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 righthand 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 * * * ...


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