On appeal from Superior Court of New Jersey, Law Division, Monmouth County, where opinion is reported at 153 N.J. Super. 505 (1977).
Fritz, Bischoff and Morgan. The opinion of the court was delivered by Fritz, P.J.A.D.
These are consolidated appeals by insurance company sureties on recognizances for bail in 14 criminal matters. They appeal from the denial of their motion for an order vacating the judgment of forfeiture and exonerating the bail. The opinion of the trial judge appears at 153 N.J. Super. 505 (Law Div. 1977).
The Law Division judge premised his denial of these motions, at least in part, on the failure of the surety to have "availed itself of all legal remedies," i.e. , pursuit at law of the principal on his or her indemnity agreement, the
judge noting that in the "usual surety-principal relationship," or according to the "uniform policy of bonding companies acting as sureties on criminal recognizances," an indemnity agreement is required. While reported cases permitting bail sureties to require indemnification agreements and to recover on them are readily available, we have been directed to no authority by the trial judge or by any of the parties which imposes a requirement of seeking indemnification on a surety before it may endeavor to avoid forfeiture or exonerate the bail. Our reported appellate decisions in the area have not undertaken to articulate such a requirement despite the opportunity. See State v. Peace , 63 N.J. 127 (1973); State v. Fields , 137 N.J. Super. 79 (App. Div. 1975), and State v. Hyers , 122 N.J. Super. 177 (App. Div. 1973).
In the unique circumstances of the criminal bail bond, we believe the better rule to be to the contrary. In view of the accepted policy of this State whereby equitable considerations may serve to frustrate, in whole or in part, forfeiture, we see no worthwhile purpose in requiring principal-surety litigation before there is a determination as to whether either is to be penalized and the extent of such penalty. Otherwise two contests are required in any case in which forfeiture is sought to be avoided. The contrary rule requires two contests at most only in the cases where some forfeiture is not avoided, and even in those the matter may end after the initial hearing, depending upon such factors as the extent of remission.
We therefore declare that a surety on a bail bond need not seek indemnification prior to its action for exoneration. Needless to say, if its contract or the law provides for indemnification, it may go against the principal first, but it need not. Nor are we at all concerned that if indemnification has been achieved prior to a surety's motion for exoneration, the surety may enjoy a windfall: its discharge also will act to discharge the principal, and any monies refunded to the surety must be paid over to the principal or held in
trust for him to the full extent of the indemnification payment.
Reference to the opinion below demonstrates that except for an extended, analytical and acceptable discussion on bail and forfeiture, as well as the aforementioned consideration and determination of the issue respecting the necessity for an action on the indemnification agreement as a presumed prerequisite to the relief here sought, the Law Division judge almost wholly ignored individual findings in any but two cases (Singletary and Baldwin), and summarily disposed of the balance of the motions in a five-line paragraph concluding the opinion:
Beyond what is set forth above as contained in the affidavits accompanying their motions, the sureties involved here produce no other proofs. They simply have made no showing at all entitling them to the relief sought. For the foregoing reasons the motions were denied. [153 N.J. Super. at 516]
A leaning toward such a summary disposition is entirely understandable if for no other reason than the number of cases presented. Beyond this, we can understand the impatience of the judge with the delay in the application of the sureties and the apparent lack of concern by their counsel for the judge's awareness of and attention to the guidelines enunciated in State v. Hyers, supra , 122 N.J. Super. at 180 (and cited with approval in State v. Peace, supra , 63 N.J. at 129). Nevertheless, such a summary ...