
    REED et al. v. STATE.
    No. 8855 —
    Opinion Filed Nov. 18, 1919.
    (Syllabus by the Court.)
    Bail — Forfeiture—Relief.
    Forfeiture of bail set aside for reasons given in opinion.
    Error from County Court, Ottawa County; Vein E. Thompson, Judge.
    From order of county court refusing to set aside forfeiture of appearance bond of Mrs. Otis Wells, her sureties, J. B. Reed and another, bring error.
    Reversed.
    Towne, Swarts & Towne, for plaintiff in error.
   HIGGINS, J.

The county court of Ottawa county made an order forfeiting the bail of Mrs. Otis Wells, and a motion was filed by J. B. Reed and Ed Leonard to set the forfeiture aside, and upon hearing the court refused so to do, directing the county attorney to sue upon the bond, from which order refusing to set aside the forfeiture an appeal has been lodged in this court.

The plaintiffs in error have filed their brief in support of the contentions raised by them, but the defendant in error has not filed any brief, though the time for filing the brief has long since expired.

From the record filed in this court it appears that one Mrs. Otis Wells was charged, with the unlawful possession of intoxicating liquor and had executed an appearance bond in the sum of $500 with J. B. Reed and Ed Leonard as sureties. The cause was called for trial on November 21, 1916, but she failed to appear and a forfeiture was taken on her bond. Her sureties appeared and consulted the judge of the court, who advised them to surrender the defendant, whereupon they went from Miami to Wirt, Okla., a distance of about seventy-five miles, where they found the defendant, and she was by them on November 29th surrendered in court. Later, on December 7th, the matter of setting aside the forfeiture of the bond of the defendant came on to be heard. At this hearing there was evidence in the form of affidavits introduced without objections on the part of the state showing that the defendant was sick at the time her cause was called for trial, one being the affidavit of a physician.

We believe the court erred in not setting aside the forfeiture upon the evidence offered.

It is the judgment of this court that the judgment of the lower court refusing to set aside the forfeiture of Mrs. Otis Wells be and the same is set aside, and furthermore that the order of the lower court forfeiting her bond be and the same is hereby ser aside.

All the Justices concur.  