
    STATE ex MOORE, Plaintiff-Appellee, v. FERTIG et, Defendants-Appellants.
    Ohio Appeals, Seventh District, Portage County.
    No. 185.
    Decided September 11, 1950.
    Guy Showalter, Kent, for plaintiff-appellee.
    Clyde K. Rhein, Edmiston, Boldizar, Schneider & Zellmer, Cleveland, for defendants-appellants.
   OPINION

By PHILLIPS, PJ.

In this opinion plaintiff in the Juvenile Court of Portage County, will be called plaintiff, and defendants there, Edward Fertig and Lloyd Fertig, as defendants accused and surety respectively.

Defendant accused, Edward Fertig, was found guilty on November 9, 1949, in the trial court of being the putative father of plaintiff’s illegitimate child born May 13, 1947, at which trial he was present.

At the time of the arrest of defendant-accused defendant-surety Lloyd Fertig entered into a recognizance with the State of Ohio in the sum of $300.00 binding the defendant-accused to appear at the next term of the Juvenile Court of Portage County to answer the complaint lodged against him in that court and to abide the order thereof.

At a subsequent hearing held on January 24, 1950, which defendant-accused did not attend, but at which he was represented by counsel, who advised the trial court that plaintiff waived his right to be present in person and requested him to find the amount due plaintiff from defendant-accused, and which appearance he contends the trial judge excused, he was ordered to pay plaintiff’s lying in expenses and to support her child. He failed to comply with that order.

On March 4, 1950, the trial judge notified defendant, at his last known place of residence, to appear on March 13, 1950, to pay such amount found due plaintiff, supercede it with a bond, or abide such other lawful order of the trial court as might be made under threat of forfeiture of such bond. Such notice reads as follows:—

“Whereas, on the 24th day. of January, 1950, the Court made an order finding that the sum of One Thousand Thirty Five Dollars ($1035.00) is due the Plaintiff for the support of the child of which you have been found to be the father, you are therefore ordered to appear in this court on Monday, the 13th day of March, 1950, at ten o’clock, A. M., to pay the amount of said order, give bond guaranteeing its payment as provided by law, or abide by such other order as the Court may make.
“Upon failure to appear as ordered, your appearance bond may be forfeited.”

Defendant Edward Fertig made no further appearance in the trial court, although his counsel and defendant-surety did appear and objected to the forfeiture of such bond, and demanded that his cash deposit be returned on the ground that the final order in the case we review was made on January 24, 1950, and that forfeiture thereof after final order was illegal.

The trial court sent defendant-accused notice of a hearing to be held on March 13, 1950, and at that hearing defendant-accused did not appear, and has not appeared subsequently.

Thereafter the trial judge ordered the recognizance executed by defendants forfeited.

In his appeal to this court on questions of law defendant-surety contends that the trial court’s order of January 24, 1950, released him as surety on such recognizance, and that the trial court’s order of forfeiture of such recognizance was contrary to law and null and void.

The question presented by defendant-surety’s appeal is answered by the decision of the supreme court in the case of Neininger v. State, 50 Oh St 394, upon the authority of which we affirm the judgment of the trial court.

NICHOLS, J, GRIFFITH, J, concur in judgment.  