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United States Fidelity & Guaranty Co. v. State

Supreme Court of Arizona

February 24, 1947

UNITED STATES FIDELITY & GUARANTY CO.
v.
STATE et al

Appeal from Superior Court, Maricopa County; Howard C. Speakman, Judge.

Affirmed.

E. G. Frazier and Charlie W. Clark, both of Phoenix, for appellant.

John L. Sullivan, Atty. Gen., John W. Rood, Asst. Atty. Gen., and Edwin Beauchamp, County Atty., and Fred J. Hyder, Deputy County Atty., both of Phoenix, for appellees.

LaPrade, Judge. Stanford, C. J., and Udall, J., concur.

OPINION

LaPrade, Judge.

[65 Ariz. 213] Frank L. James was informed against in the Superior Court of Maricopa County for the crime of obtaining money by means of a bogus check, a felony, and admitted to bail in the sum of $ 750. Bail being furnished by the defendant's undertaking, on which the appellant United States Fidelity & Guaranty Company, a corporation, was surety, the defendant was released from custody. The bail bond was conditioned that James would personally appear before the court to answer the information; at all times render himself amenable to all orders and processes of the court; and render himself for trial upon the same. Defendant appeared for arraignment with counsel, entered a plea of not guilty, and the case

Page 824

was regularly set down for trial on a day certain. On the trial date counsel for the state and defendant appeared in open court, whereupon the state announced that it was ready for trial. Defendant did not appear, and no legal cause being shown to excuse his absence, the court entered its order forfeiting defendant's bail, and ordered a bench warrant for his apprehension. Ten days having elapsed and the forfeiture not having been discharged, the county attorney, by the authority of the provisions contained in section 44-451, A.C.A.1939, filed in the office of the clerk of the court a certified copy of the order of the judge forfeiting the undertaking, together with a written request to docket and enter a judgment in the amount of the bond in favor of the county and against defendant Frank L. [65 Ariz. 214] James and his surety. The clerk complied with this request, docketed the same, and entered judgment against each of them. Thereafter United States Fidelity & Guaranty Company filed a motion to vacate the judgment upon the ground that as to it the judgment was null and void for the reason that it was entered by the clerk of the court without authority of law. The motion to vacate was denied, whereupon appellant perfected this appeal from the judgment and the order denying its motion to vacate the judgment.

Briefly summarized, appellant's assignment of error is to the effect that the judgment was entered without authority of law for the reason that it was entered and docketed by the clerk of the superior court without any order for judgment by the judge of the court. In support of this assignment, appellant submits the following propositions of law, which we have summarized.

I

That the clerk of the court has no judicial authority, and that judicial authority cannot be conferred upon the clerk by a rule promulgated by the Supreme Court.

II

That section 44-451, A.C.A.1939, being a rule of court, is in violation of and in excess of the powers granted the Supreme Court by Ch. 8, Laws of Arizona 1939 (Art. 2, Ch. 19, A.C.A.1939), and that said rule deprives appellant of the substantive right of a trial by jury as provided by section 5171, R.C.A.1928, in effect at the time of the adoption of the rule ...


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