Opinion
No. 73-328
Decided August 13, 1974. Rehearing denied September 4, 1974. Certiorari denied November 11, 1974.
Bonding company appealed order of district court requiring it to refund bond premium to the party who had paid the premium.
Order Affirmed
1. BONDS — Bonding Company — No Risk — Defendant — Hold Order — Incarcerated — Indemnitors Primarily Liable — Repayment of Premium — Proper. Where, on competent evidence, trial court found that, when bond was posted, the bonding company had known that it was taking no risk because it knew there was a hold order on the defendant and that he would be incarcerated during the period of the bond and because it required indemnitors to put up property and be primarily liable in the matter, the trial court properly required the bonding company to repay the premium on the bond.
Appeal from the District Court of the County of Jefferson, Honorable Winston W. Wolvington, Judge.
Keller Dunievitz, Lionel Dunievitz, for surety-appellant.
No appearance for plaintiff-appellee or defendant.
This is an appeal from a final order directing defendant bonding company to refund a $500 bond premium to the party who had paid the premium. We affirm.
Nichols was arrested on February 13, 1973, and his bond was set in the amount of $5,000. His wife borrowed $500 which was paid to an agent of the American Bonding Company who requested that in addition to the $500, sureties be furnished who could sign the bond as indemnitors to the bonding company. A Mr. and Mrs. Freeman signed the bond as indemnitors. Later Mr. and Mrs. Freeman desired to be released from the bond and contacted the agent of American Bonding Company. A hearing for the release of the Freemans was arranged by the bonding company for March 27, 1973. At the scheduled time defendant Nichols, Mrs. Nichols and the Freemans appeared. The bonding company was represented by a Mr. Herbertson, a licensed bondsman and agent for the company, who advised the court that the company did not wish to withdraw from the bond. However, at that time, the public defender who was representing the defendant advised the court that there was a hold order on the defendant from Arapahoe County, that defendant had never been released from jail and was still incarcerated therein, and that the defendant wished to be surrendered and have the bond released and the premium repaid. At that time, Mr. and Mrs. Nichols testified as to the circumstances surrounding the issuance of the bond and, at the conclusion of the hearing, the court took the matter under advisement until the morning of the 29th of March and advised that the parties could supply briefs if they so desired.
On the morning of March 29, 1973, the court received a phone call from the wife of the company agent who had written the bond and who had planned to be at the hearing. She advised the court that she could not be present on behalf of the bonding company because of an automobile accident. Since she was not an attorney and no attorney had entered an appearance on behalf of the bonding company, the court proceeded with the hearing and had Mr. and Mrs. Freeman testify. At the conclusion of the hearing, pursuant to its general supervisory powers over bonding companies, the court determined that the bond in question was void ab initio, and ordered that any moneys obtained by the American Bonding Company in consideration for the bond be returned to the party or parties who paid for it.
The American Bonding Company thereafter filed a motion to set aside and vacate the order of court requiring refund of the $500 by the bonding company. It contended that it had not surrendered defendant and that surrender by the surety is a requirement and condition precedent to the refund of all or any portion of the bond premium. After a hearing on the surety's motion, the court denied the motion and advised the parties that he would treat the motion as a motion for a new trial. The bonding company appeals from that ruling requiring it to refund the $500.
Both Colo. Sess. Laws 1972, ch. 44, 39-4-110, and Crim. P. 46(e)(3) provide that:
"By entering into a bond each obligor, whether he is the principal or a surety, submits to the jurisdiction of the court."
Further, Colo. Sess. Laws 1972, ch. 44, 39-4-108(1)(c) provides that:
"If a compensated surety is exonerated by surrendering a defendant prior to the appearance date fixed in the bond, the court, after a hearing, may require the surety to refund part or all of the bond premium paid by the defendant if necessary to prevent unjust enrichment."
[1] The bonding company does not complain of a lack of notice. The only issue is the correctness of the order to repay the $500. It was a compensated surety and when Nichols, the surety, and the indemnitors were in court, Nichols had a right to request that he be surrendered to the court and the court had the power and authority to accept the surrender of Nichols into court. At the conclusion of the last hearing, the court stated:
"The Court has heard the arguments of counsel and the Court has heard the additional evidence presented here today. And based upon the additional evidence, the Court finds as a matter of fact from the evidence presented today that the bonding company did in fact know that there was a hold order. The court therefore reaffirms its previous opinion that the bonding company knew that it was taking no risk, both because it knew there was a hold order and that the defendant would be incarcerated during the period of the bond; and because it required the Freemans to put up property and for them to be the ones primarily liable in the matter. And for these reasons, the Court reaffirms its previous order, and denies the motion to set aside and vacate order filed by the bonding company."
This finding is supported by competent evidence and is binding on us on review. Linley v. Hanson, 173 Colo. 239, 477 P.2d 453, and we agree with the conclusion.
Order affirmed.
CHIEF JUDGE SILVERSTEIN and JUDGE ENOCH concur.