[14] The issue in this case is whether Selby v. State ex rel. Amis, Okla., 302 P.2d 775, should be overruled. The defendant in error herein, State ex rel. Gibbons, County Attorney, presents his case upon the proposition that the Selby case is in direct contravention of 22 O.S. 1961 § 1108[22-1108]; that it ignores previous controlling decisions of this court, and should be overruled.
[15] The plaintiff in error, Schwoerke, argues his case on appeal on two propositions: (1) that the state's cause of action is barred by limitations, and (2) that the state's proof of forfeiture is insufficient to prove a forfeiture of the bond. Since the majority does not discuss the question of limitations I will limit my remarks to the second proposition.
[16] I am of the view that the state's proof of forfeiture is sufficient to prove that the bond was forfeited; that the Selby case should be overruled; and that we should then consider the plea of limitations.
[17] 22 O.S. 1961 § 1108[22-1108], provides in material part as follows:
"If * * * the defendant neglects to appear * * * for * * * trial or judgment, * * * the court must direct the fact to be entered upon its minutes, and the recognizance, bond or undertaking of bail, * * * is and shall be thereupon declared forfeited. * * *" (emphasis supplied)
[18] In the instant case when Cooper failed to appear for sentencing the county judge dictated the following minute to the court clerk:
"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."
[19] In the action in the District Court for judgment on the bond the County Judge testified that he had familiarized himself with the entry upon the appearance docket and further testified:
"A. This is a minute of the Court as dictated by me to the Clerk or her deputy and written in my presence.
* * * * * *
"A. This is the minute of the order of the Court made in this case, on this particular day and dictated by me to the Court Clerk or her deputy."
[20] Section 1108, supra, provides that the court must direct the fact (of failure to appear) to be "entered upon its minutes", and the bond is and shall be thereupon declared forfeited. The section contains no requirement that there be an order of forfeiture entered in the journal of the court. Indeed it is argued in this case that when a defendant fails to appear and the court directs this fact to be entered upon its minutes that the bond is forfeited under the plain language of the statute.
[21] In the Selby case, now under attack, we held in the first and second paragraphs of the syllabus as follows:
"1. 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.
"2. Where burden is upon plaintiff under circumstances stated in paragraph one, entries made by the court clerk in appearance docket of case in which *Page 974 forfeiture is alleged to have been ordered are not alone sufficient to establish that bail bond has been forfeited." (emphasis supplied)
[22] In the Selby case we relied upon 12 O.S. 1951, Secs. 22 [12-22] and 701 (civil procedure statutes) and completely overlooked the special provisions of 22 O.S. 1951 § 1108[22-1108] (22 O.S. 1961 § 1108[22-1108] [22-1108]), supra, which is the section under criminal procedure establishing procedures in bond forfeitures. Therein we also relied upon Harjo v. Johnston, 162 Okla. 153, 19 P.2d 961; Bigpond v. Davis,121 Okla. 44, 247 P. 676; Braniff v. Coffield, 199 Okla. 604, 190 P.2d 815; and Cockrell v. Schmitt, 20 Okla. 207, 94 P. 521, all of which involved civil procedures but not bond forfeitures. Bond forfeitures cases cited or relied upon in the Selby case will be considered separately, in the following order: Addington v. State ex rel. Pruet, 172 Okla. 61, 44 P.2d 131; State ex rel. Voyles v. Pierce, 65 Okla. 212, 166 P. 132; Woods v. State, 180 Okla. 118,68 P.2d 103; and Davis v. State ex rel. Hodge, 112 Okla. 298,240 P. 1069.
[23] In the Addington case we held in the third paragraph of the syllabus that "A void order forfeiting an appeal bond * * cannot support an action * * * on such bond, and such (void) order of forfeiture may be collaterally attacked." In that case the forfeiture, as distinguished from procedure, was absolutely void and its voidness appeared upon the face of the record and by decision of the Oklahoma Court of Criminal Appeals.
[24] In State ex rel. Voyles, supra, the trial court sustained a demurrer to plaintiff's petition in its action upon the bond for the reason (1) the bond attached to the petition did not describe the offense with which the defendant stood charged, and (2) the petition did not allege a conviction for any public offense. In reversing the trial court we held in effect that there inheres in the forfeiture, as a matter of law, and fact, a determination that the defendant stood charged with a public offense; that the forfeited bond had been executed to secure his release from custody pending trial or appeal; that the forfeited bond had been given in the particular case in which the defendant stood charged; and that a collateral attack could not be made upon the forfeiture in an action upon the bond.
[25] In Woods v. State, supra, the appearance bond was made on or about July 25, 1931. The case was continued on October 7, and October 8, 1931, although the defendant was present and ready for trial. On November 13, 1934, there was entered upon the Clerk's minutes the following notation: "4946, State v. Fred Woods, bond forfeited, bench warrant issued." We pointed out that the Clerk's notation did not show that the bond was given by the defendant; nothing to show the purpose of giving the bond; and it did not show any breach of any of the conditions of the bond. We reversed the trial court and directed the trial court to "set aside the order of forfeiture." This reversal was not upon the ground thata notation upon the minutes was not acceptable, but because the minute as entered was not sufficiently full and complete and because of the further fact that the forfeiture was unjust and improper under the facts presented.
[26] None of the foregoing cases support the rule announced in the Selby case.
[27] Davis v. State ex rel. Hodge, 112 Okla. 298, 240 P. 1069, supra, is cited but not discussed in the Selby case. The Davis case is in point, is well considered, and should have been followed in the Selby case. Therein the action was upon a forfeited bail bond and in upholding the proof of forfeiture we said:
"* * * The record discloses the introduction in evidence of the appearance bond sued upon; minutes on the appearance docket showing that, `on October 12, 1923, B.T. Davis bond forfeited, bench warrant issued, bond fixed at $7,500'; the clerk's minute book regarding case No. 2261, State v. B.T. Davis et al., dated October 12, 1923, reciting, `Bond forfeited, bench warrant issued, bond set at $7,500'; judge's *Page 975 minute on his bench docket concerning said criminal case is as follows: `10-12-23. Bond forfeited of B.T. Davis, bench warrant ordered.' The state also introduced in evidence the specific declaration of forfeiture of the bond sued upon, which contains the judge's signature, and is dated October 12, 1923, but bears an indorsement showing the same was filed by the clerk on January 5, 1924. * * * The argument, as we understand it, is based upon the theory that before this action can be maintained on the appearance bond it must appear that an order or judgment of the court declaring the forfeiture was spread upon the journal of the court; that, if the state desired a judgment to be entered upon the minutes, it had a right to do so, but had not done so at the time the suit on the bond was instituted; and, further, that the purported judgment of forfeiture was not filed by the clerk until January 5, 1924, after the issued was joined in the suit * *."
[28] After quoting 22 O.S. 1961 § 1108[22-1108] (Sec. 2927 C.S. 1921), supra, we said:
"This section of the statute does not require the entering of a formal order upon the journal or record proper, but merely requires the court to direct the fact of the failure of the defendants to appear to be entered upon its minutes and then provides the bond `is and shall be thereupon declared forfeited.'"
[29] As supporting this conclusion we quoted from State v. Hines,37 Okla. 193, 131 P. 688, in part, as follows:
"`* * * and caused the fact to be entered upon its minutes. This was all the statute providing for forfeiture of bail requires.'"
[30] In the fifth paragraph of the syllabus in Whiteaker v. State,31 Okla. 65, 119 P. 1003, we held:
"Where money is deposited in lieu of bail and the defendant fails to appear, it is only necessary, in order to declare a forfeiture, that the court should direct the fact of the deposit, and of the defendant's neglect to appear, to be entered of record. The forfeiture then follows as a matter of course." (emphasis supplied)
[31] These cases (Davis v. State ex rel. Hodge; State v. Hines; and Whiteaker v. State) all construe 22 O.S. 1961 § 1108[22-1108], supra, and are in point. The Selby case does not notice Sec. 1108, supra, and the cases therein relief upon are not in point. It follows that the Selby case should be overruled and we should give our attention to appellant's plea of limitations.
[32] I respectfully dissent.
[33] I am authorized to state that WILLIAMS, J., concurs with the views herein expressed.