(dissenting) — I respectfully dissent.
I think the majority reverses the judgment upon a proposition not raised in the district court and upon a claimed error not assigned here, contrary to our repeated holdings this will not be done and notwithstanding defendant has been represented at all times by counsel of long experience.
Some further statement of facts seems desirable. When defendant, with his counsel, pleaded guilty on February 18, 1954, the entry made by the district court contained this recital: “Thereupon representations are made by defendant and his counsel to the court that defendant desires under the provisions of the law and prior to the pronouncing of sentence to have an opportunity to give a bond conditioned that he will support his children, and a bond in the sum of $500 conditioned as provided by law is tendered and the same is by the court accepted.”
Defendant’s “Bond for Support” in the sum of $500, filed the same day, provides in part:
“Whereas, said defendant is now desirous of furnishing support for his three minor children,
“Now, Therefore, I * * hereby undertake to furnish my three minor children with necessary support and pay into the office of the clerk * * * for the purpose of reimbursing the State Board of Social Welfare for the $356.80 which they contributed toward the support of said children, the sum of $60 per month until said amount of $356.80 is fully paid, and if I should fail in said undertaking, I shall forfeit and pay to the State of Iowa the sum of $500.”
The county attorney’s application for order which defendant says in argument was verified, filed June 26, 1954, recites: “That on the same date (February 18, 1954) defendant indicated a willingness to support his family * *.
“That defendant has wholly failed in his undertaking and under the provisions of section 731.5 of the 1950 Code of Iowa, defendant may be .arrested * * As the majority indicates, section 731.5 provides for rearrest of a defendant, forfeiture of his bond and his commitment upon his failure “to comply with his undertaking.”
It was July 24, 1954, before defendant and his attorney appeared in court in response to the above county attorney’s *939application. Defendant’s first move at this time is shown by the following record: “Defendant appears and requests a continuance of this case from week to week on the promise that he will comply with the previous order.” The court was of the opinion this application was without merit and overruled it. (No complaint is now made of the ruling.) At this point there was a “discussion off the record” the nature of which is not shown.
Thereupon the court inquired of defendant’s counsel in defendant’s presence, “Do you have anything to say?” The only response to this inquiry was the motion (to which the majority refers) by defendant’s attorney “to dismiss this proceeding” on the ground the court had lost jurisdiction because the term of court was past in which the original order was made and the court could not sentence defendant for nonpayment of money to the state or county. This motion was likewise overruled and again there was a discussion off the record the nature of which does not appear.
The majority agrees the district court did not lose jurisdiction to sentence defendant at a subsequent term and- defendant does not now argue it did.
After defendant’s motion to dismiss the proceeding was overruled, the court three times, inquired of defendant’s counsel if he had any evidence to offer. To the first such inquiry the attorney replied, as the majority indicates, “Except what I have stated to the court — that this man has at this time a steady job and is able and willing to pay fifteen dollars a week” etc. This statement was followed by discussion off the record for the third time., the nature of which is not revealed.
To the court’s second inquiry whether defendant had any evidence to offer, his counsel responded, “Well the facts I stated to you”, evidently referring to one of the discussions off the record. To the court’s third inquiry whether he had any evidence to show why sentence should not be pronounced according to law, his counsel replied, “I have no further evidence.”
The court then explained to defendant that his bond in the sum of $500, filed February 18, 1954, was “conditioned that you pay certain sums for the support of your wife and children” and *940“You are in default of your payments as required by tbe order and the condition of the bond, and the bond is hereby forfeited.” Defendant was then sentenced to a term not to exceed a year in the penitentiary.
It may be conceded defendant should not be sentenced for failure to repay the State Board of Social Welfare. But the obligation to repay the Board is only one of the two conditions of this bond. The other is plainly stated in the bond itself: “I * * * hereby undertake to furnish my three minor children with necessary support.” I understand the majority to hold this condition of the bond is valid and of course I agree.
Defendant argues in this court for the first time that the State was required to offer sworn evidence of witnesses that defendant had violated the undertaking of his bond to furnish his children with necessary support. Even this point is not raised by any assignment of error. I think it was not necessary to offer such evidence under the circumstances here, and there is sufficient basis for the conclusion that the proper condition of this bond was violated.
As. before explained, the county attorney’s sworn application, filed four weeks before defendant was sentenced, recites: “That defendant has wholly failed in his undertaking and under the provisions of section 731.5 * * * may be arrested * * Defendant and his experienced counsel certainly knew the State claimed defendant had failed to support his children in violation of his bond. It is not argued they did not have such knowledge.
The response of defendant’s attorney to the court’s inquiry whether he had “anything to say” did not intimate defendant had furnished his children necessary support, or that the State was required or called upon to offer evidence of his failure to support them. Defendant’s main contention — wholly without merit and now abandoned — was that the court had lost jurisdiction because the plea of guilty was entered at a previous term. Nor did any of the three inquiries from the court whether defendant desired to offer evidence indicate any claim defendant had furnished his children support or that it was incumbent on the State to offer sworn testimony of failure of support. Defendant has never asserted here he furnished his children any support.
*941It is entirely possible that in one or more of the three discussions “off the record” defendant’s counsel frankly conceded he had not furnished any of his three children with support during the more than five months since he pleaded guilty. Applicable here are decisions that a trial court in pronouncing sentence may consider “any and all facts that will assist it in the proper exercise of that discretion, whether it be in or out of the record. State v. Meloney, 79 Iowa 413, 44 N.W. 693.” State v. Myers (Hays, J.), 241 Iowa 670, 672, 42 N.W.2d 79, 80.
In any event the contention it was incumbent on the State to prove by sworn testimony (or otherwise, for that matter) defendant had not furnished such support was not made in the trial court. Had it been, there is every reason to believe ample evidence to that effect could and would have been readily produced. It is not unfair to require such a contention to be raised in the trial court and to hold, in accord with a long line of precedents, it cannot be first advanced here.
These are a few of our many decisions to the effect a contention not timely raised in the trial court will not be considered on appeal: State v. Manley, 197 Iowa 46, 53, 196 NW. 724; State v. Tarr (Bliss, J.), 233 Iowa 659, 10 N.W.2d 55; State v. Thom (Oliver, J.), 236 Iowa 129, 132, 17 N.W.2d 96, 98; State v. Albertson (Smith, J.), 237 Iowa 1148, 1153, 24 N.W.2d 395, 397; State v. Stuart (Mulroney, J.), 241 Iowa 1004, 1007, 43 N.W.2d 702, 703; State v. Rutledge (Oliver, J.), 243 Iowa 179, 199, 47 N.W.2d 251, 263; State v. Ganaway, 243 Iowa 1316, 1318, 55 N.W.2d 325, 326. See also 3 Am. Jur., Appeal and Error, sections 820, 857; 24 C. J. S., Criminal Law, section 1669, which states: “It is an almost universal rule that questions not raised in the trial court will not be considered on appeal.”
Aside from what has thus far been said, State v. Sell, 199 Iowa 388, 389, 202 N.W. 209, 210, cited by the majority, states that when an affidavit was filed alleging Sell had failed to comply with the conditions of his bond to furnish a suitable home for his children “Citation issued, and the defendant was required to show cause why the bond should not be forfeited.” This method of procedure seems to have met with our approval in *942the Sell ease. At least no disapproval thereof is expressed. This would indicate it was proper here for the trial court, after the county attorney’s sworn application had been filed, to call upon defendant to show cause why his bond should not be forfeited. Certainly no sufficient showing to such effect -was made here.
State v. Sell, supra, also states: “Did the court exercise a proper discretion in the forfeiture of the bond! Ordinarily, this is a matter within the control of the trial court; and before this court will interfere, a clear abuse of discretion must be shown.” Substantially this same language is found in 67 C. J. S., Parent and Child, section 98b(2) (d), page 849.
I think no clear abuse of discretion has been shown here.
I would affirm.
Bliss, J., joins in this dissent.