Colorado § 16-4-112 - Enforcement when forfeiture not set aside.

§ 16-4-112. Enforcement when forfeiture not set aside.

By entering into a bond, each obligor, whether he or she is the principal or a surety, submits to the jurisdiction of the court. His or her liability under the bond may be enforced, without the necessity of an independent action, as follows: The court shall order the issuance of a citation directed to the obligor to show cause, if any there be, why judgment should not be entered against him or her forthwith and execution issue thereon. Said citation may be served personally or by certified mail upon the obligor directed to the address given in the bond. Hearing on the citation shall be held not less than twenty-one days after service. The defendant's attorney and the prosecuting attorney shall be given notice of the hearing. At the conclusion of the hearing, the court may enter a judgment for the state and against the obligor, and execution shall issue thereon as on other judgments. The district attorney shall have execution issued forthwith upon the judgment and deliver it to the sheriff to be executed by levy upon the stocks, bond, or real estate which has been accepted as security for the bond.

Source: L. 2013: Entire part R&RE, (HB 13-1236), ch. 202, p. 834, § 2, effective May 11.

ANNOTATION

Annotator's note. Since § 16-4-112 is similar to § 16-4-110 as it existed prior to the 2013 repeal and reenactment of this part 1, relevant cases decided under that provision and former provisions similar to that section have been included in the annotations to this section.

Following proper forfeiture, the court should issue a citation, or other process in the nature of scire facias, directing those against whom judgment is sought to appear and answer within a reasonable time. People v. Johnson, 155 Colo. 392, 395 P.2d 19 (1964).

Following an order declaring a bond forfeited, the court should issue a citation or other process in the nature of scire facias, as provided in this section and Crim. P. 46, ordering the surety to show cause why judgment should not be entered against him. E. & E. Bonding Co. v. People, 160 Colo. 185, 415 P.2d 860 (1966).

Bond is not debt until forfeiture. Where no order is ever entered by the trial court in a criminal case declaring a bail bond forfeited nor a citation or other process issued as provided in this section and Crim. P. 46, it follows that the defense that a civil complaint against the sureties for a debt on the bond failed to state a claim upon which relief could be granted is good. E & E Bonding Co. v. People, 160 Colo. 185, 415 P.2d 860 (1966).

Unnecessary to grant delay while surety searches for principal. To grant delay in order that sureties have time to search for, produce, and surrender the defendant would be without warrant. People v. Johnson, 155 Colo. 392, 395 P.2d 19 (1964).

Effect of material increase of risk to bondsman. When a bondsman enters into a surety agreement, he undertakes a calculated risk, so that events which materially increase that risk have the effect of terminating the obligation. People v. Calloway, 40 Colo. App. 543, 577 P.2d 1109 (1978).

By approving defendant's departure from state without notice to surety, the court terminates any control the surety might have had over the defendant and the court's action discharges the surety from any obligation under a bail bond. People v. Calloway, 40 Colo. App. 543, 577 P.2d 1109 (1978).