(a) Upon the declaration of a forfeiture pursuant to § 40.90, the clerk of the court shall mail notice of the forfeiture to any surety or depositor, other than the person required to appear. The clerk shall execute an affidavit of mailing and place it in the court's file in the case. (b) The surety or depositor may, not later than thirty days after the mailing of the notice of forfeiture, apply by noticed motion to have the forfeiture set aside. After hearing, the court may set aside the forfeiture, upon such conditions as it may impose, if it appears that justice does not require enforcement of the forfeiture. (c) If after thirty days from the mailing of the notice of forfeiture, the forfeiture has not been set aside and no motion to set aside is pending, the court shall on motion of the prosecution attorney enter a judgment of default and execution may issue thereon. Payments made in satisfaction of a judgment entered pursuant to this Section shall be deposited in the general fund of the Territory. By entering into a bond a surety submits to the jurisdiction of the court and irrevocably appoints the clerk of the court as his agent upon whom any papers affecting his liability may served. His liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk
of the court, who shall forthwith mail a copy to the surety to his last known address. (d) Where money deposited with the clerk is declared forfeited pursuant to § 40.90, the clerk with whom it is deposited shall, upon entry of a judgment of default pursuant to this Section, pay the money deposited into the general fund of the Territory. (e) At any time after entry of judgment pursuant to Subsection (c), the court may remit it in whole or in part upon application by the judgment debtor on noticed motion and a showing that justice does not require endorsement of the judgment. NOTE: Section 40.95 is based on former Rule 46(f) and §§ 1305-1307. However, former Rule 46 provided no time limits for setting aside a forfeiture while former §§ 1305 and 1306 had very narrow limits (10 days). Section 40.95 increases the initial period to 30 days during which the surety or depositor may move to have the declaration of forfeiture set aside and, like the federal law, places no time limits on a motion seeking remission of a judgment. As under prior law, no attempt is made here to specify precise grounds for setting aside a forfeiture or remitting a judgment. Section 40.95 permits such action simply as justice requires. It should be noted, however, that unlike under former § 1305, there is no requirement that the person who was required to appear, actually appear. Reasons that the court might consider include death, illness, or detention by other authorities. Compare Cal. Pen. Code § 1305. However, these reasons are neither exhaustive nor necessarily compelling. Similarly, the effect, if any, of a dismissal of the charge after nonappearance is left to the judgment of the court. Compare former § 1306.
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