¶1(dissenting).
¶2I concur in the majority opinion as to affirming the judgment in No. 4668 below ($750.00 bond) but I am unable to concur as to the reversal of the judgment in No. 4712 ($2500.00 bond) below without directing a new trial in the case.
¶3Upon Roy L. Scott and Summit Fidelity and Surety Company’s (hereafter referred to as “surety”) motion to vacate the orders of forfeitures that were entered in the above referred-to case, the attorneys for the respective parties stipulated to the facts as shown by the record. This stipulation developed that (1) surety produced Scott in court on May 3, 1960, the day following the date upon which No. 4668 and No. 4712 were set for trial; that (2) on May 7, 1960, Scott pleaded guilty in No. 4712 and was sentenced to serve 7 months in jail; that (3) Scott immediately began serving the sentence.
¶4Upon the above-mentioned matters being called to the trial court’s attention, the court made known, as I read the record, that justification for vacating the forfeiture in No. 4712 had been shown. The court in fact stated that “in this case (No. 4712) it might not be necessary to put on testimony.” As one would expect, surety, believing that it had prevailed in No. 4712, introduced no testimony.
¶5In its brief surety makes this statement.
“On the morning of May 3, 1960, the defendant, Roy L. Scott, was brought before the court by his bondsmen, defendant herein, and offered as an excuse, that he, Roy L. Scott, had been left in Wichita, Kansas without a ride.”
¶6If the foregoing statement is true, the trial court personally knew of said fact. It is entirely possible that in consideration of said fact and the further fact that surety promptly produced Scott following the forfeiture and Scott promptly pleaded guilty in No. 4712 and began to serve his sentence, the trial court concluded that Scott and surety satisfied the provisions of 22 O.S.1951 § 1108 to the effect that a forfeiture may be vacated where “the defendant or his bail appear and satisfactorily excuse his neglect.” If such are the facts, justification for reversing in No. 4712 would not exist.
¶7The record, however, wholly fails to show that Scott or surety attempted at the hearing to vacate the forfeiture to excuse Scott’s failure to appear for trial on May 2, 1960. Failure in this particular, in my opinion, can be attributed to the fact that Scott and surety may have made known to the trial court on May 3, 1960, Scott’s excuse and the further fact that the trial court made known in No. 4712 that he considered that the agreed or stipulated facts showed justification for vacating the forfeiture in said case without the introduction of further evidence. In either event, surety was misled to his possible detriment and having been so misled failed to prove at the hearing on the motion to vacate the forfeiture, that Scott had a satisfactory excuse for failing to appear for trial on May 2nd. I would therefore reverse the judgment in No. 4712 and direct that a new trial in said case be granted.
¶8For reasons stated, I respectfully dissent from the majority opinion reversing the judgment in No. 4712, without directing a new trial in the case.