Imperial Insurance Company v. State

346 N.E.2d 612, 169 Ind. App. 165, 1976 Ind. App. LEXIS 896

• Court: Indiana Court of Appeals
• Decided: May 12, 1976
• Docket: 3-1175A266
• Status: Published

Opinions

Staton, P.J.

The sole question presented by this appeal is whether the “legal notice” requirement in IC 1971, 35-4-5-8 (Burns Code Ed.) is satisfied by an entry in the court’s docket setting the cause for trial without written notice or actual notice of such setting to the bail bondsman or the insurer.

Imperial Insurance Company and Julius Gudinas posted their bond on October 11, 1971 in the amount of Three Thousand Dollars ($3,000.00) for the appearance of defendant Ann Sims with Leslie O. Pruitt, Sheriff of Lake County. No trial date for the appearance of Ann Sims was fixed by the trial judge. On October 15, 1971, the trial court set Ann Sims’ trial for October 21, 1971. Ann Sims failed to appear for trial and on October 29, 1971, the trial court issued a warrant for her- arrest. Later, the court ordered the bond forfeited and the bond forfeiture executed pursuant to IC 1971, 35-4-5-12 (Burns Code Ed.). Imperial Insurance Company and Julius Gudinas filed their petition to set aside the bond forfeiture, which petition was denied by the trial judge who made the following entry:

“Comes now the Imperial Insurance Company, by their attorney, Alton Gill, in open court, and this cause is now submitted to the Court on their Petition to Set Aside Bond Forfeiture.

“The Court now rules that the Entry on the Docket Sheet of October 15, 1971 is legal notice to the Bonding Company as contemplated by Burns Statutes 9-3731 [IC 1971, 35-4-5-8], for that reason, the Court finds that the Petition to Set Aside Bond Forfeiture and Vacate Judgment be denied.”

Imperial Insurance Company and Gudinas contend that entry of the trial date on the court docket does not satisfy the legal notice requirement in IC 1971, 35-4-5-8.

IC 1971, 35-4-5-8 provides:

“If there is a breach of the undertaking, the court before which the cause is pending shall make a record thereof and shall declare the undertaking, and any money or bonds that have been deposited as bail, forfeited: Provided, however, the bail bondsman or the insurer shall have had legal notice of the trial or hearing of defendant at least seventy-two [72] hours before required appearance of defendant, unless the appearance is scheduled within that time from the execution of bond. Upon said undertaking being thus forfeited, the clerk of the trial court shall immediately transmit the undertaking to the clerk of the circuit court of the county-in which said undertaking was filed.”

IC 1971, 1-1-4-1 (Burns Code Ed.) sets forth these rules for our interpretative construction of “legal notice”:

“The construction of all statutes of this state shall be by the following rules, unless such construction be plainly repugnant to the intent of the legislature or of the context of the same statute:

“First. Words and phrases shall be taken in their'plain, or ordinary and usual, sense. But technical words and phrases having a peculiar and appropriate meaning in law shall be understood according to their technical import.”

First, “legal notice” is not a word of art. It is defined in Black’s Law Dictionary 1041 (1968) as follows:

“Such notice as is adequate in point of law; such notice as the law requires to- be given for the specific purpose or in the particular case. . . . Knowledge brought home to a party in a prescribed form. . . .”

The Legislature has not prescribed the type of notice to be given within the statute itself nor can we ascertain the type of notice intended by the Legislature from an examination of the 1961 Bail Act as a whole. The definitional section of the 1961 Bail Act, IC 1971, 35-4-5-1 (Bums Code Ed.) does not contain a definition of “legal notice.” We have found no Indiana case interpreting the meaning of legal notice in IC 1971, 35-4-5-8. However, the Supreme Court of Indiana has stated in Lock Joint Tube Co. v. Citizens Trust and Savings Bank (1941), 218 Ind. 162, 170, 31 N.E.2d 989, 993:

“ ‘Service of notice has a definite meaning and unless otherwise provided by law means personal service of the individual in such way that the party who makes the service, may be in a position to make due proof thereof , to the court. . . .’”

Therefore, we hold that the “legal notice” required by IC 1971, 35-4-5-8 is personal service of written notice of the hearing or trial date upon the bail bondsman or insurer. We hold that the manner of effectuating personal service upon the bail bondsman or insurer may be by any of the methods set out in Indiana Rules of Procedure, TR. 5(B) which provides:

“Whenever a party is represented by an attorney of record, service shall be made upon such attorney unless service upon the party himself is ordered by the court. Service upon the attorney or party shall be made by delivering or mailing a copy of the papers to him at his last known address.

“(1) Delivery. Delivery of a copy within this rule means

(a) handing it to the attorney or party ;

_(b) leaving it at his office with a clerk or other person in charge thereof, or if there is no one in charge, leaving it in a conspiciuous place therein; or,

(c) if the office is closed, by leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.

“(2) Service by mail. If service is made by mail, the papers shall be deposited in the United States mail addressed to the person on whom they are being served, with postage prepaid. Service shall be deemed complete upon mailing. Proof of service of all papers permitted to be mailed may be made by written acknowledgment of service, by affidavit of the person who mailed the papers, or by certificate of an attorney. It shall be the duty of attorneys when entering their appearance in a cause or when filing pleadings or papers therein, to have noted on the bench docket or said pleadings or papers so filed the address and telephone number of their office. Service by delivery or by mail at such address shall be deemed sufficient and complete.”

Although TR. 5 is applicable only to parties, TR. 5(B) provides the method of service of notice of hearing and trial dates upon parties, and we deem it generally sufficient notice of hearing and trial dates upon bail bondsmen and insurers. We note that IC 1971, 35-4-5-10 (Burns Code Ed.) sets out the form for surety bonds and provides for the entry of the appearance date. If the appearance date is fixed in the surety bond itself, clearly the bail bondsman or insurer has written notice of the appearance or trial date and no further notice is necessary.

Since IC 1971, 35-4-5-8 makes forfeiture of the bail bondsman or insurer’s undertaking conditional upon “legal notice” of the trial or hearing of the defendant at least seventy-two hours before the required appearance of the defendant and since such legal notice was not given to Imperial Insurance Company and Gudinas in this case, the trial court’s judgment entering bond forfeiture is hereby reversed.¹

Garrard, J., concurs; Hoffman, J., dissents with opinion.

1 . Although we recognize that the judgment of the trial court should be upheld by this Court if sustainable on any theory, we do not agree with the dissenting opinion’s conclusion that the bond in this case could have been forfeited for failure of defendant Ann Sims to appear pursuant to IC 1971, 35-4-5-3 (Burns Code Ed.) “. . . on the first day of the next term of the court. . . .”

The Legislature passed IC 1971, 35-4-5-3 (Burns Code Ed.) in 1961. In 1967, the Legislature abolished the distinction between term time and vacation time in all courts of the State of Indiana and extended the term for all courts to the calendar year. IC 1971, 33-1-6-1 (Burns Code Ed.). Finally with the adoption of the Indiana Rules of Procedure, TR. 72(A) on January 1, 1970, terms of court were abolished altogether. TR. 72(A) provides in pertinent part as follows: “. . . Terms of court shall not be recognized.” The Civil Code Study Commisson Comments to Trial Rule 72 state:

“This subdivision follows Federal Rule 77(a) and accomplishes in essence what was achieved by Burns’ Stat., §§ 4-6310, 4-6312 and 4-6313 [I.C. 1971, 33-1-6-1; I.C. 1971, 33-1-6-3; I.C. 197Í, 33-1-6-4 (Burns Code Ed.)] eliminating terms of court. However, terms are completely abolished by the effect of this provision, and the court, theoretically is open at all times. .. .”

See also, 4 W. HARVEY & R. TOWNSEND, INDIANA PRACTICE 510 (1971). We deem the portion of IC 1971, 35-4-5-3 which requires a defendant to appear on the first day of the next term of the court if no trial date has been set to be repealed by TR. 72 (A).