dissenting.
I respectfully dissent. I do so despite my agreement with the majority that a simple telephone call by the Sheriff to Appellant might have prevented this protracted litigation over an amount of money less than $3000.
I dissent because Appellant did virtually nothing to take advantage of the “first opportunity to return” it was given via section 374.770.2. I cannot agree that Appellant should be rewarded for its inaction. To the contrary, the policy underlying Missouri’s bail bond law supports the notion that Appellant should pay for Carroll’s return since Appellant made no effort to return Carroll other than (1) locate Carroll, (2) notify law enforcement officials of Carroll’s whereabouts; and (3) force the Sheriff to enter Carroll’s name into the NCIC database. In my view, these minimal steps did not entitle Appellant to simply wait to be notified by some sheriff or other judicial officer of Carroll’s impending release and, when such voluntary notice was not given, successfully defend a motion for costs on the grounds that, the lack of notice of Carroll’s release date deprived it of the “first opportunity to return.”
The bail bond policy to which I refer is stated in State v. Hinojosa, 364 Mo. 1039, 271 S.W.2d 522 (1954), thusly:
“Recognizances are not taken to enrich the treasury. They rest in humanity to an accused, and their obvious and main purpose is the enforcement of the criminal laws that defendant appear for trial or sentence. Good faith is not involved. Sureties know and solemnly contract that the defendant shall appear and abide the orders of the court and in the event of his default are bound by their obligation. Recognizances are not idle forms. If sureties, who have it in their power to insure compliance by a defendant, may be relieved because they make diligent effort for his arrest as a fugitive there exists little inducement for diligence on their part in the first instance to prevent his escape. To exonerate sureties for such reason would seriously impede the declared public policy of the State for the prevention and punishment of crime. It is more important that an accused be forthcoming for trial and of greater importance that he be forthcoming for sentence than that the expense of keeping him in prison be avoided. A lax administration of laws for the prevention or punishment of crime is not for the best interests of society and is not justified.”
Id. at 524[3, 4].
I recognize Hinojosa predated section 374.770, the latter having been enacted in 1983. The changes wrought by section 374.770, however, were limited and only altered Missouri’s bail bond law as follows.
First, section 374.770 enables a surety to avoid an automatic bond forfeiture or set aside a bond forfeiture if the surety proves the principal’s non-appearance was caused by his or her incarceration somewhere in the United States and the surety “informs the court” about such incarceration before judgment is entered on the forfeiture order. See State v. Goodrich, 12 S.W.3d 770 (Mo.App.2000); State v. Siemens, 12 S.W.3d 776 (Mo.App.2000).
Second, section 374.770.2 provides:
“In all instances in which a bail bond agent ... has given his bond for bail for any defendant who has absented himself in violation of the condition of such bond, *605the bail bond agent ... shall have the first opportunity to return such defendant to the proper court. If he is unable to return such defendant, the state of Missouri shall return such defendant to the proper court for prosecution, and all costs incurred by the state in so returning a defendant may be levied against the bail bond agent ... in question.” (Emphasis supplied.)
Except for the relief afforded sureties via section 374.770.1 and except for the “first opportunity” language in section 874.770.2, the 1983 statute did not alter the bail bond law or policy in Missouri.1 As such, what was said in Hinojosa has applicability here, namely, “lax administration of the laws for the prevention or punishment of crime is not for the best interests of society and is not justified.” Id. at 524[4]. Equally apropos is this from State v. Tennyson, 537 S.W.2d 858, 860 (Mo.App.1976): “[Tjhere would be little incentive for sureties to keep the principal from escaping if sureties could be excused on a showing of diligence in attempting to have the principal returned.” Certainly, there would be little incentive for sureties to take advantage of their first opportunity to return if they could avoid the expense of returning by simply letting the sheriff know where the principal is and then getting the principal’s name entered into the NCIC database.
Relying on the principles espoused by Hinojosa and Tennyson, I hold the view that, at a minimum, the “first opportunity to return” provision in section 374.770.2 should be interpreted to require sureties, such as Appellant, to do everything in their power to secure the return of the principal (here, Carroll) before they can successfully use a claim of a lack of “first opportunity” to avoid paying for the return of their principal. I find support for this view in cases such as State v. Foster, 512 S.W.2d 448 (Mo.App.1974). Although Foster also predates section 374.770, it shows, by analogy, the effort that should be required of a surety before it can be relieved of retrieval expenses on the basis it was denied the first opportunity to return.
In Foster, the surety did everything in its power to produce the principal in court; the only remaining act to accomplish that purpose was for the state of Missouri to transport the accused. When the state failed to act, the court forfeited the bond. The appellate court reversed the forfeiture judgment, holding that when “a surety has taken every step possible in making the defendant available to the jurisdiction of the State of Missouri,” a bond should not be forfeited when those actions are thwarted by the state’s actions or inactions. Id. at 451. Here, however, Appellant failed to do anything, other than locating Carroll, notifying the Sheriff and the court of his whereabouts, asking the court to issue an order mandating that the Sheriff enter Carroll’s name into the NCIC database, and waiting for the Sheriff to supply additional information.
Appellant seems to argue that it actually did everything in its power to return Carroll to Missouri and that it was merely waiting on the Sheriff to notify it that Carroll was ready to be transported to Missouri upon release by the Georgia authorities. I find this argument without merit.
First, Appellant ignores the fundamental policy of Missouri vis-a-vis bail bonds. As aptly stated by one court:
*606[The surety’s] obligation goes not merely to bringing a defendant back from another jurisdiction, but to preventing the defendant’s initial departure .... [A] surety not only has the right to prevent a defendant from leaving the state, it has an obligation, under peril of financial loss ‘to keep a watch over the accused.’ When it fails to do so and the result is not only departure but incarceration in another jurisdiction, the protest that the state discouraged return in some way can only be viewed as an excuse for the surety’s own failure to remedy its initial and primary error in not keeping a watchful eye.”
State v. Gray, 658 S.W.2d 41, 43-44[5] (Mo.App.1983) (citations omitted) (emphasis supplied).
Second, I find no statutory support for the notion that the Sheriff had a duty to notify Appellant. Section 347.770.1 plainly states “the surety is responsible for the return of the defendant.” The statute continues by stating the surety shall have the first opportunity to return the defendant. I find no requirement in the statute that the Sheriff must cooperate with the surety. The only thing the surety is entitled to under the statute is a “hold order” and the “first opportunity” to return the absent defendant. § 374.770.1-2. To add the requirement that the Sheriff must aid the surety in exercising its first opportunity of return, “would be putting something in the statute that the legislature did not.” State v. Cummings, 724 S.W.2d 316, 318 (Mo.App.1987). This we should not do.
Because Appellant did not exercise due diligence and take every possible step to procure Carroll’s presence before the court, I would hold that Appellant is liable for the costs of transporting him to Missouri. I would affirm the judgment of the trial court.
. As noted, section 374.770.2 expressly requires the surety to pay the costs of returning a defendant. In a similar vein, section 374.770.1 provides that "the surety be responsible for the return of the defendant.” Although cases interpreting the first subsection of the statute can be found, none have been found that deal with the "first opportunity to return” provision of the second subsection.