[1] On March 16, 1959, Walter Arthur Cooper was charged in the County Court of McClain County, Oklahoma, with the offense of operating a motor vehicle while under the influence of intoxicating liquor. He pleaded not guilty, and his appearance bond was set at $1,000.00. The plaintiff in error signed the bond as surety, and Cooper was released from custody. Thereafter Cooper changed his plea to guilty, and July 3, 1959, was set for sentencing, and Cooper was permitted to remain free on the bond until that time. On July 3, 1959, Cooper failed to appear for sentencing, and the following entry was made on the appearancedocket.
"7-3-59 CM: On this 3 day of July 1959 there comes on before the court pursuant to an order entered herein on March 25, 1959 the sentencing of said defendant, the State appeared by and through the Co. Atty., Deft. appeared not but made default, thereupon said deft. his bondsmen were called 3 times in open court to appear, and thereby save his recognizance. He appeared not. Its ordered and adjudged that said deft, is in default. It is therefore ordered that said bond be forfeited and bench warrant forthwith issued."
[2] There was no entry of the proceedings on the journal of the court. Thereafter on November 14, 1960, the defendant in error filed its petition in the District Court of McClain County, Oklahoma, seeking recovery against the plaintiff in error as surety on such appearance bond. It set forth the proceedings had in the county court, declaring the bond to be forfeited.
[3] The answer of the defendant, plaintiff in error herein, contained a verified general denial and a plea of limitation.
[4] Upon the issues thus joined, trial of the case to a jury was waived, and the court heard the case. It was stipulated that the defendant signed the bond. *Page 972 [5] The Clerk of the District and County Court identified the County Court Criminal Court Appearance Docket wherein the minute above quoted appeared. This record was admitted in evidence over the objection of the defendant. The witness testified that this was the only record of the bond forfeiture in the Cooper case, and that there was no record in the journal of any kind. Her testimony on this point was as follows:
"Q As Court Clerk, is it, as District Court Clerk, is it your duty to maintain a record of proceedings in civil cases, both in the District Court and County Court?
"A Yes.
"Q And do you maintain such records?
"A Yes.
"Q I want to call your attention to this volume and ask you to state what that is, please?
"A The County Criminal Appearance Docket No. 6.
"Q Referring to that docket, state whether or not there is a record there concerning the prosecution of criminal proceedings in the County Court against a party named Cooper?
"A Walter Arthur Cooper, yes.
"Q And that record was made by you or under your supervision?
"A Yes.
"Q And does it reflect a true and accurate record of what took place in the matter?
"A Yes.
* * * * * *
"Q Is that the only record that you have in connection with the prosecution of Mr. Cooper, and in connection with the bail bond that was made by Mr. Schwoerke, is that the only record you have of the proceedings in the County Court?
"A Yes, in County Criminal.
"Q There is no record in your Journal of any kind?
"A No, just in this book, itself."
[6] There were other witnesses, but the fact of no entry in the journal is undisputed.
[7] At the conclusion of the hearing, the court overruled the demurrer to the evidence presented by the defendant, and on June 2, 1961, entered judgment against the defendant for the full amount of the bond. The motion for a new trial of the defendant having been overruled, this appeal was perfected.
[8] One of plaintiff's assignments of error is that the proof is insufficient to prove a forfeiture of the bond to establish liability upon him. With this contention we agree. We are of the opinion and hold that this case is controlled by the latest opinion of this court in the case of Selby v. State ex rel. Amis, Okla., 302 P.2d 775, wherein the syllabus by the court reads:
"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."
[9] The case at bar falls squarely within such ruling. Our holding on plaintiff's first contention renders it unnecessary to consider his second contention concerning the statute of limitation.
[10] The judgment of the trial court is reversed with directions to vacate the judgment entered in said cause and to dismiss the action. *Page 973 [11] HALLEY, V.C.J., and WELCH, DAVISON, and BERRY, JJ., concur.
[12] BLACKBIRD, C.J., and WILLIAMS, JACKSON and IRWIN, JJ., dissent.