(dissenting).
The essential question in this case, as I see it, is whether a final judgment forfeiting a bail bond is sufficiently supported by a judicial record which discloses that a forfeiture was not declared when the state contends the defendant’s presence was required in court but seven days later on the same day and by the same order that dismissed the amended information and discharged the defendant and which record further discloses that the writ of scire *857facia’, was filed five days after the defendant was discharged and the final judgment of forfeiture was not entered until nine days after the defendant was discharged.
The 'State contends in its supplemental brief that the court retained jurisdiction over the breach of appellant’s bond “after the information was held insufficient”, citing State v. Haverstick, Mo., 326 S.W.2d 92, 96, 97; State v. Poston, 63 Mo. 521; and State v. Gross, 306 Mo. 1, 275 S.W. 769. These cases generally support the proposition that the insufficiency of an indictment alone does not constitute ground for relief of sureties from the failure of the principal to comply with the conditions of the recognizance, but neither the statement of the point nor the cases cited reach the question here involved, which is whether the discharge of the defendant by the court after a finding that the indictment was insufficient terminates jurisdiction or, in the alternative, constitutes a satisfaction of an alleged breach of the condition of the bond.
It is evident from the record that the defendant appeared at the term required and answered the information and eventually secured its dismissal. The first part of the bond goes to the obligation of the defendant “to answer the charge before the court.” In my opinion the requirement that he shall not “depart such court without leave” is satisfied by the order of the court discharging him after finding the indictment insufficient. State v. Fillingham, 214 Mo. 368, 375, 113 S.W. 1057, holds that the purpose of the clause restricting the defendant’s departure without leave was to bind the defendant not only to appear to answer the information filed but also any subsequent charge that might be brought against him. See also 8 C.J.S. Bail § 79d, p. 155.
McKensie v. Missouri Pac. Ry. Co., 24 Mo.App. 392, 395, states: “When, therefore, the court quashed the indictments and adjudged that the accused go hence without day, the recognizance was discharged and became functus officio, and the subsequent order, overruling the motion to discharge the defendant and his sureties therefrom, was illegal and void. * * * The motion of the accused, for himself and his sureties, to be discharged from the recognizance, was a work of supererogation. They were already discharged, and that prosecution was ended.”
The state has cited no authority in this state or elsewhere justifying the forfeiture of a bail bond after the court has discharged the defendant upon a finding that the indictment was insufficient. The statutory law and decisions seem to deny the right of forfeiture in these circumstances.
Unquestionably, the general rule is that the discharge of the defendant in a criminal case satisfies the recognizance and releases the principal and his sureties.
6 Am.Jur. 129, Bail annd Recognizance, § 165, states: “The general rule is that liability on a bail bond or recognizance is discharged by a vacation or quashing of the indictment on motion of the defendant, at least where a discharge of the accused is ordered.” Italics added. In the same volume and title, § 170, p. 131, further states: “A final discharge of the prisoner by the court releases the surety, since there is no longer any need of keeping the prisoner in custody. Under this rule, it has been held that the sureties cannot be held liable for non-appearance of the accused upon being called back at a subsequent date. Moreover, a subsequent reversal of the judgment discharging the defendant does not revive the surety’s liability.”
L.R.A.1916F, pp. 367-368, states: “Of course, a final discharge of the prisoner by the court or an acquittal by the jury .releases the surety, since there is no longer any need of keeping the prisoner in the custody of anyone.”
The annotation in 20 A.L.R. 594, 596, states the general rule as follows: “But as the sole purpose of a bail bond or recognizance is to secure the enlargement of the principal, and its effect is to place him in *858the custody of his bail, who are under the duty of producing him before the court to answer the charge against him, it may be generally stated, as will appear from a consideration of the following cases hereinafter set out in this annotation, that the liability of his sureties terminates at any stage of the proceedings at which the prosecution is ended by the discharge of the defendant by the court. * * Italics added.
Supreme Court Rule 32.12 also expresses the idea that the prosecution must be pending in order to hold the sureties liable. The rule provides that by entering into the bond the obligors submit to the jurisdiction of the court in which the defendant is required to appear and “in which a prosecution is or may be pending against the defendant”. When the prosecution is no longer pending, the jurisdiction over the sureties as well as the defendant must be extinguished.
In State v. Cobb, 44 Mo.App. 375, 377, the question was whether a provision in a bail bond for the payment of any fine adjudged, as well as assuring the defendant’s appearance to answer the charge, was enforceable in' a statutory proceeding on the bond. The court held: “Nor does any statutory authority exist for forfeiting such a recognizance after the prisoner has been discharged from his original custody by the judgment of the court upon his trial; and this takes place when he is sentenced to pay a pecuniary fine without imprisonment.”
The general rule certainly is in keeping with § 544.450 providing that a recognizance shall be taken for the defendant’s appearance to answer the charge and “to abide sentence and judgment therein” and thereupon the defendant “shall be discharged.” It is also in harmony with § 544.640 which outlines the statutory procedure for forfeiture by scire facias and Supreme Court Rule 32.12.
The question then arises whether there is an exception to the general rule when a forfeiture is declared and a scire facias is ordered issue at the same time and in the same order by which the information is dismissed and the defendant discharged.
It must be kept in mind that this is not a case such as State v. Henderson, 356 Mo. 1072, 204 S.W.2d 774, where the 'record affirmatively shows that the presence of the defendant was required in that the trial of the case was delayed for a period of thirty or forty minutes because of defendant’s absence and the forfeiture of the bond was promptly declared. The only action taken in this case on March 30, 1960, was the argument and submission of the motion to dismiss the information. The transcript does not show that the case was called for trial. If the presence of the defendant was required, it does not affirmatively appear from the record. The record does not show that the defendant was called for any purpose. It only shows a notation that the defendant did not appear. Apparently the notation was not called to anyone’s attention unless it was made pursuant to the state’s motion filed the following day which made that specific request. If the notation was already on the docket, then that part of the motion was superfluous. Moreover, the court did not decide to declare a forfeiture until seven days later when it also dismissed the information and discharged the defendant. The sequence of events was most unusual and out of keeping with a situation in which the defendant was required to appear personally and the court was concerned and affronted by his failure to do so.
The case most nearly ruling the question here involved is that of Bell v. State, 79 Tex.Cr.R. 407, 186 S.W. 328, 331 [4], which, like this one, was a proceeding by scire facias to forfeit a bail bond. After furnishing bond and filing a motion to quash the indictment, the defendant disappeared leaving the conduct of the litigation to his attorneys. The court held that a judgment forfeiting bail for failure of the defendant to appear should be set aside where the state by its demurrer admitted that the indictment against the defendant had been *859•quashed before the judgment of forfeiture was entered. In Dunn v. State, 121 Tex.Cr.R. 30, S3 S.W.2d 307, 309 [3], the final judgment of forfeiture was entered before the indictment was quashed and it was thereby distinguished from the Bell case.
A writ of scire facias filed in the criminal case is the proceeding here employed; it is the method provided by statute. Section 544.650. As stated in State v. Kelly, 318 Mo. 1134, 2 S.W.2d 750, 752, and since approved in State v. Wynne, 238 MoApp. 436, 181 S.W.2d 781, 783, and State v. Haverstick, Mo., 326 S.W.2d 92, 96: “The writ of scire facias is not an original writ by which litigation can be initiated; it only marks a stage in litigation already commenced. It is founded on the record of the court that issues it, and must rely on the record of that court for its support.” The validity of the forfeiture ordered on April 6, 1960, and made “absolute and final” on April 15, 1960, must find its support in the record of the criminal case.
The statements to the effect that the forfeiture proceedings are civil in nature are usually found in cases dealing with the applicable rules of evidence and procedure and particularly the jurisdiction of the courts, such as whether jurisdiction is in the supreme court on appeal or in one of the courts of appeal, State v. Gross, 306 Mo. 1, 275 S.W. 769, or whether one division of the Circuit Court of Jackson County can determine the forfeiture proceeding and another division the criminal case, State v. Wynne, 238 Mo.App. 436, 181 S.W.2d 781, 783 [6-8]. The majority opinion is misleading in that it tends to establish that such a case is a wholly independent contract action. This cannot be because the statutes and the very nature of a writ of scire facias tie the forfeiture proceedings into the record made in the criminal case.
The majority opinion attaches considerable significance to the fact that “the entry of forfeiture and ordering the show cause writ of scire facias preceded the entry sustaining appellant’s motion to dismiss and discharging appellant from the criminal charge.” This is without legal effect because the declaration of forfeiture and the discharge of the defendant were but parts of one order. This court on occasions has refused to take note of fractions of days in determining the priority of orders and judgments. Inclusion of both these items in the same order simply points up the contradictory and inconsistent actions. The discharge of the defendant is paramount; it 'satisfies the bond and renders futile the attempt to enforce a forfeiture.
If the right to forfeit a bail bond can be preserved by a declaration made on the same day and in the same order by which the defendant is discharged, then what is to prevent the state from declaring a forfeiture a week, a month, or a year after the defendant is discharged? If a simple notation on the judge’s docket that the defendant did not appear is sufficient to give rise to a wholly independent action which survives the judgment discharging the defendant, then there appears to be no reason why the forfeiture proceedings could not be instituted any time within the statutory limit for actions on bonds.
The majority decision is not only contrary to decision law as shown by the authorities cited but is also contrary to statutory provisions regarding forfeitures. It would have the effect of denying express statutory rights of sureties. Under § 544.-610 RSMo 1959, V.A.M.S., the liability of bailors may now be discharged as follows: “The bailor at any time before final judgment against him upon a forfeited recognizance, may surrender his principal in open court or to the sheriff; and upon the payment of all costs occasioned by the forfeiture, and all costs that may accrue at the term to which the prisoner was recognized to appear, may thereupon be discharged from any further liability upon the recognizance.” Italics added. To the same effect see also Supreme Court Rule 32.11.
*860Under this section, if the defendant surrenders or is produced by his bondsmen before final judgment on the recognizance, it is mandatory that the bailor be released on payment of costs. In State v. Wynne, 356 Mo. 1095, 204 S.W.2d 927, 932 [14], this court stated: “Reading the three sections together, we come to these conclusions : under Section 3970 [now § 544.610] if the accused voluntarily surrender or is produced by the bailor before final judgment on the recognizance, the bailor, as of right, must be released on payment of the costs; under Section 3973, [now § 544.640] even though the accused is not produced, or is produced by peace officers and not by the bailor, the court may for cause remit the penalty upon payment of the costs; * Italics added.
A defendant bailed upon the recognizance of his sureties is in the custody of his bondsmen as well as the custody of the law. The court through its officers may in a proper case re-arrest the defendant; and the sureties, under the express provisions of § 544.610, may deliver their principal into custody. State v. Hyde, 234 Mo. 200, 136 S.W. 316, 334 [33]. But, if the defendant has been discharged by the court prior to the final judgment on the forfeited bond, how can a surety avail himself of his rights under this statute ? He is no longer in the custody of his bondsman or the law. Neither the surety, the sheriff, nor anyone else would have the right to seize the defendant and bring him into a court from which he has been discharged. If arrested, he would be entitled to be released on habeas corpus.
If the bond in this case had been signed by a personal or corporate surety instead of being guaranteed by cash bail, it would be quite clear that the state would not be entitled to judgment if the surety, in his answer to the scire facias, pleaded the dismissal of the information and the discharge of the defendant, the principal in the bond.
The result which the state seeks to achieve in the present case is wholly unnecessary to the proper administration of justice. To condone it would tend to create great uncertainty as to when liability on a bail bond is tei-minated. As we have seen, the discharge of the sureties on the bond has been a necessary incident of the discharge of the principal in the criminal case and I think it should continue to be so regarded.
In this case, as in any other case where the court or prosecutor is seriously concerned about the failure of a defendant to appear, the order discharging the accused could have been postponed until such time as the forfeiture was prosecuted to final judgment. That would enable all concerned to protect their rights as provided by law.
There is no contention that a deposit of cash hail should be treated differently than a case where a recognizance with sureties is furnished. As stated in State v. Hinojosa, 364 Mo. 1039, 271 S.W.2d 522, 524; “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.”
Other points were preserved and raised on appeal, but the one discussed above seems so compelling that the others need not be considered. For this reason I respectfully dissent. I would reverse the judgment and remand the cause with directions to find for the defendant on the issues made by the writ of scire facias and the answers thereto.