Appeal from Third District. 9 judgment of forfeiture requires a recital of facts in the minutes showing that Mellor "without sufficient excuse" neglected to appear; and as the proved order contains no such recital, no action can be founded upon it. The statute, undoubtedly, requires the fact to be entered in the minutes that the defendant failed or neglected to appear, etc., and that the bond was declared forfeited. But we do not think that either the ultimate or evidentiary fact that such failure or neglect was "without sufficient excuse' was also required to be entered in the minutes. State v. Austin, 141 Mo. 481, 43 S. W. 165; People v. Bennett, 136 N. Y. 482, 32 N. E. 1044; McGuire v. State, 124 Ind. 536, 23 N. E. 85, 25 N. E. 11; Banta v. People, 53 Ill. 434; People v. Tidmarsh, 113 Ill. App. 153. That a non-appearance is inexcusable could, so far as the state's showing, be deduced in most instances only from the defendant's failure or neglect to appear. Whether such failure or neglect is excusable is something resting peculiarly within the knowledge of the defendant and not of the state; hence the provision of the statute, that before the final adjournment of the court the defendant or his bondsmen may appear and satisfactorily excuse the neglect and thus cause the forfeiture to be vacated. The statute requires an information to be filed within thirty days after a defendant has been examined and committed. The record of the case of State of Utah v. Mellor, put in evidence by the plaintiff, shows that the information was not filed within that time. For this reason it is con- 10 tended that the court, upon the filing of the information, was without power to order Mellor's appearance for arraignment, and hence that the order of forfeiture is of no effect. Such failure of the district attorney cannot aid the defendants in this, a collateral proceeding. State v. Lagoni, supra. The defendants, by their answer, with great particularity, averred that Mellor at all times was a resident of Salt Lake City, and resided within four blocks of the building where the district court was held; that she had counsel of record who also maintained his office within three blocks of the building; that she and her counsel were at no time 11 State v. Sorenson et al., 48 Utah 663. during any of the proceedings absent from Salt Lake City; that both had telephones and by such and other means could readily have been notified of the filing of the information and of the order requiring Mellor to appear for arraignment; that upon the filing of an information and fixing a day for a defendant's arraignment it had been the long-established custom and practice of the court to notify the defendant or his counsel of the day so fixed, but no notice of the filing of the information nor of fixing the day for the arraignment was given Mellor or her counsel, or either of the defendants, and that none had notice or knowledge whatever of the filing of the information nor of the making of the order until the commencement of this action, and that Mellor, at all times, was ready and willing to appear in the district court whenever her appearance was required, and failed to appear solely for the reason that she and her counsel both were without notice or knowledge that she was required to appear. But it was indisputably shown that after this suit was commenced, and while it was pending, Mellor and these defendants, in pursuance of section 5007, appeared before the criminal division of the court, and on motion and by affidavits upon all of the grounds of excusable neglect set forth in the answer herein, asked that the order of judgment of forfeiture be vacated, which motion, upon a hearing had before that court, was before the trial of this action denied. Now, on the trial herein, the defendants offered evidence in support of the allegations of their answer, which upon objections of the state, was refused. Complaint is made of the ruling. It evidently was made on the theory that the record of the forfeiture of the recognizance was conclusive evidence of the breach and could not be impeached by extrinsic evidence; and, further, that the matters so set up in the answer and offered to be proved were determined and adjudicated on the motion heretofore referred to. We think the ruling right. State v. Hindman, 159 Ind. 586, 65 N. E. 911; People v. Wolf, 16 Cal. 385; McNamara v. People, 183 Ill. 164, 55 N. E. 625; State v. Hines, 37 Okl. 198, 131 Pac. 688, Ann. Cas. 1915B, 431. Thus, whatever the truth may be as to the matters set up in the answer, or the legal effect of them, was not open to Appeal from Third District. further litigation in this proceeding. Though it should be said that the defendants were not conclusively bound by the judgment or order of forfeiture itself, they certainly were bound by the adjudication made on their own motion to set the judgment or order aside, and hence were estopped from assailing it in this, a collateral proceeding. The order, therefore, is that the judgment of the court below be affirmed, with costs. FRICK, J., concurs. MCCARTY, J. (dissenting). I think the court, under the facts and circumstances disclosed by the record, abused its discretion in refusing to set aside the forfeiture. I am also of the opinion that we are not precluded by any recognized or known rule of law of this jurisdiction from considering the question. The only theory upon which the claim can be maintained that appellants are precluded and estopped from assailing the order overruling the motion to set aside the forfeiture is that the order is, in contemplation of law, a judgment from which an appeal could be taken. Our statute defines a judgment as "a final determination of the rights of parties in actions or proceedings." Comp. Laws 1907, section 3183. Clearly neither the forfeiture nor the order overruling the motion to set aside was "a final determination of the rights" of either the appellants or the state in this matter. If either of these orders has, or the two combined, have the force and effect of a final judgment or order, and such is the logic of the prevailing opinion, as I construe it, then it necessarily follows that when the order denying appellants' motion to set aside the forfeiture was made the state was entitled to have an execution issued and sufficient of appellants' property not exempt from execution levied upon and sold to satisfypay off-the judgment of forfeiture, and the bringing of the suit on the bond was a vain and useless thing. No such doctrine is contended for by the state or expressly announced in the opinion, but the logic of the opinion and the conclusions therein announced seem to me to lead to such a result; Vol. 48-43 State v. Sorenson et al., 48 Utah 663. otherwise sureties on bonds of the kind here involved are denied their constitutional right to have orders forfeiting such bonds reviewed and considered on appeal. Suppose, for illustration, appellants had appealed to this court from the order denying their motion to set aside the forfeiture only, and the state had moved to dismiss the appeal on the ground that it was not taken from a final judgment or order, I do not think it is even problematical respecting the position this court would have taken. Under such circumstances we would, in all probability, have dismissed the appeal, and in doing so invited appellants' attention to the fact that the order of forfeiture is in no sense a final judgment or order, that their liability or non-liability on the bond had not yet been judicially determined, and hence there was nothing upon which to base an appeal. For the reasons stated, I am of the opinion that the judgment of the lower court should be reversed, with directions to that court to grant a new trial. INDEX ACCOUNTING. See "EXECUTORS and ADMINISTRATORS." ADMISSIONS. See "EVIDENCE." ADULTERY. See "DIVORCE." APPEAL AND ERROR. See "CRIMINAL LAW." 1. DECISIONS APPEALABLE-FINAL JUDGMENT. A cause cannot be 2. DISCRETION OF COURT-REVIEW. The rule that granting new 3. NOTICE OF APPEAL-SUFFICIENCY-DESCRIPTION OF JUDGMENT. No- 4. RIGHT OF APPEAL-WAIVER-SATISFACTION OF JUDGMENT-SEP- 5. CROSS-ASSIGNMENTS-NECESSITY OF CROSS-APPEAL. The prosecu- 6. LAW OF CASE-JUDGMENT-RECORD. The Supreme Court on ap- peal in a law case is not authorized to try the issues on the |