dissenting.
Appellant Martin’s case is simply this: (1) the case is naught but “simple contract interpretation” and can be resolved by invoking “the plain language of the bail bond agreement”; (2) his indemnity contract with respondent Lyons, the indemnitor, provides that Lyons will “pay the appellant immediately upon the declaration of forfeiture of said bail bond the penal amount thereof”; (3) the bond was declared forfeited; and (4) it follows that Lyons owes Martin’s Clearwater Bail Agency $500.00.
Respondent Lyons insists that the case requires a two-stage analysis: (1) his liability as indemnitor cannot survive the extinction of the underlying bail bond agreement; (2) such liability no longer exists because the “said bail bond” was exonerated when the district court quashed the criminal complaint against Mendenhall.
The majority opinion adopts the simple contract interpretation, saying that on this view, it becomes unnecessary
“ . . .to address the issue of whether exoneration automatically occurred when the district court quashed the criminal complaint [or] to decide what effects exoneration would have on a surety’s right to indemnification.”
The majority opinion cites no authority for its holding that a contract between an indemnitor (Lyons) and indemnitee (Martin) *107can be enforced regardless of whether or not the indemnitee’s underlying obligation (the bail bond) has already been discharged; nor am I able to find any; nor did I expect to. It is a fundamental principle of surety law that discharge of the underlying principal-surety obligation acts as a discharge of the indemnity over from supplemental sureties. 72 C.J.S. Principal & Surety §§ 226, 230. Any contrary principle, such as is adopted by the majority today, could lead to strange results. An indemnitor could find himself liable even where the accused’s failure to appear was attributable to his demise; or if the surety (the bail bondsman) imprudently accepted greater liability by allowing a modification of the underlying bail agreement; or if there were collusion between the bail bondsman and the court.
Because such unconscionable results would be intolerable, the principle has evolved that
“A bond or contract of indemnity does not protect the indemnitee against loss through a payment which is entirely voluntary on his part, in the sense that there is no legal obligation on him to make it, unless such payment is made with the knowledge and approval of the indemnitor.
“The amount so paid is not conclusive on the indemnitor, and the indemnitee takes the risk in an action against the indemnitor of establishing the facts on which the indemnitor’s liability depends as well as the reasonableness of the amount paid.” 42 C.J.S. Indemnity § 14(2) (Emphasis added.)
The bondsman, in short, must act “in good faith and with ordinary care” when he is held to accountability on the principal obligation; otherwise, he may not collect over from his indemnitor. The test will be whether or not he “fails to set up a defense which would probably have been successful.” 42 C.J.S. Indemnity § 40.
This Court should not avoid the question of the validity of the underlying obligation. That question was necessarily before the court below. What is important is the order entered when proceedings against Mendenhall were quashed. According to I.C. § 19-1603, and the authority of Thompson v. Adair, 36 Idaho 790, at 796, 214 P. 214, at 216 (1923),
“If the motion is granted, the court must order that the defendant ... if admitted to bail, that his bail be exonerated . . . unless it directs that the case be resubmitted.”
If the court directs the case to be resubmitted, then, according to I.C. § 19-1604, the opposite result follows:
“ . if already admitted to bail . the bail or money is answerable for the appearance of the defendant to answer a new indictment [or information]; . . . ”
If the court did not order the case against Mendenhall resubmitted, that action was over, finished, and Mendenhall could not be legally required to appear therein again. If he did do so, which we do not know, the bail was subject to forfeiture when Mendenhall failed to appear. The court’s sole discretion was in deciding whether to resubmit or not to resubmit. Where resubmission was not ordered, on timely motion the court would be required to order that the bail be exonerated. This procedure has been the settled law of Idaho for over fifty years. Thompson v. Adair, supra.
The record presented here fails to show us whether, in granting the motion to set aside, the district court did or did not order resubmission. Error being never presumed, -I would indulge the usual presumption that the proceedings below were proper. Gardner v. Fliegel, 92 Idaho 767, 450 P.2d 990 (1969). I would presume that the district judge, who had the order granting the motion to quash Mendenhall’s criminal complaint before him, noted that the order did not direct that the case be resubmitted. Therefore, he would have to find that the underlying obligation (the bail bond) had been or was entitled to be exonerated. Lyons’ motion for summary judgment was properly granted.
While it may very well have been that the case was directed to be resubmitted, on a silent record this Court can not properly *108so presume. Appellant Martin, who carries the burden of proving error, was required to furnish this Court with the order calling for resubmission. It is not to be presumed, at least by this member of the Court, that the trial judge held against appellant if the record before him did in fact show that the case had been ordered to be resubmitted, and the bond was still liable for Mendenhall’s appearance.
On the matter of the probate court having entered an order declaring the bail forfeited, no problem is presented. If the case was in fact ordered to be resubmitted, it was then back in the probate court, and on Mendenhall’s default in failing to appear, the forfeiture order was valid. On that state of facts, however, it is not readily believed that the trial court would have held against the bail bondsman. But, on the contrary situation, i. e., if the case was not ordered to be resubmitted, that action was conclusively over, and the order of the probate court was wholly void as in excess of his having any jurisdiction to enter it. Observing from such record as is before us that the probate judge had, contrary to law, committed Mendenhall to jail without affording him a preliminary hearing, I would not be caused a great amount of trouble in assuming that the order forfeiting the bond was of the same ilk.
Taking it that the appellant was confronted with such an order, and not forgetting his specialized field, and his contractual right to recover back from respondent attorney’s fees which he might spend in whatever amount, I would require of a bail bondsman, threatened with such an order, that, in an exercise of good faith and fair dealing, he first make a tender of the defense to respondent before surrendering the forfeited bond. Instead he gave respondent no notice whatever of the demand by the probate court, choosing no doubt to pay over the $500.00 readily and in that manner insure his relationship with the court, whatever it may have been.
I would affirm.
McFADDEN, C. J., concurs in the dissent.