Western Surety Co. v. United States

• Decision Date: 19 November 1938
• Docket Number: No. 8813.,8813.
• Citation: 100 F.2d 88
• Parties: WESTERN SURETY CO. v. UNITED STATES et al.
• Court: U.S. Court of Appeals — Ninth Circuit

100 F.2d 88 (1938)

WESTERN SURETY CO. v. UNITED STATES et al.^*

No. 8813.

Circuit Court of Appeals, Ninth Circuit.

November 19, 1938.

Patrick F. Kirby, of Los Angeles, Cal., for appellant.

Ben Harrison, U. S. Atty., and Francis C. Whelan, Asst. U. S. Atty., both of Los Angeles, Cal., for appellee.

Before WILBUR and DENMAN, Circuit Judges, and ST. SURE, District Judge.

DENMAN, Circuit Judge.

This is an appeal from a judgment of the United States District Court for the Southern District of California against appellant, Western Surety Company, rendered on a writ of scire facias seeking such extraordinary relief in favor of the appellee and against appellant to recover on a bail bond, alleged to have been forfeited, on which appellant is held to be a surety.

The bond was for the appearance of one Jos. S. Lamonte at the trial in the United States District Court for the Southern District of New York on one of several indictments there returned against him. It was executed in Los Angeles in the Southern District of California before a United States Commissioner, enclosed with a letter to the clerk of the New York court and placed in the mails for forwarding to him.

Nothing further is known of the letter or the bond after its deposit in the mails, though search of the New York court's records failed to disclose that it or the letter from California with which it was enclosed was received by the clerk. If it was received by the New York clerk, it is not shown in which of the cases it became a record, if in any. No attempt is shown to have been made to restore a record of it in any of the cases in the New York court and no showing is made that when the court below issued the writ of scire facias it had the bond in its possession. On the non-appearance of Lamonte in one of the cases the forfeiture of a bond was declared by the New York court.

The appellant moved to quash the writ on the ground that its issue was beyond the power of the California District Court. The motion was denied. Issue on the writ was raised by demurrer which was overruled and then by answer.

The appellant contended that the bond here involved was given in a criminal proceeding against Lamonte other than that in which the forfeiture was declared. The court below held against this contention, that the bond became a record in the New York proceeding for which it was given and that it was duly declared forfeited by the court in which the proceeding was pending.

The appellant contended below in support of its motion and contends here that appellee should have brought an ordinary action on the bond and not have attempted to invoke the extraordinary remedy of scire facias because the court in which recovery was sought was not the court in which the indictment was returned, the bond filed and the order of forfeiture entered, that neither the record of the New York federal court of the criminal case, nor of the bond and its forfeiture, nor the bond itself, had been transferred to the California federal court and that a court cannot issue a writ of scire facias founded upon a record which it does not have.

Appellant assigns and specifies other errors of the district court. Our disposition of this contention that the United States District Court for the Southern District of California lacked the power to issue the writ renders it unnecessary and beyond our power to consider the other assignments.

Scire facias in cases in personam is of statutory origin. It first appeared in the statute 13 Edward I, ch. 45. It was specifically recognized as available to the federal courts in the Act of September 24, 1789, 1 Stat. 73, 81. Its use in the federal district courts was abolished on September 16 of this year by Rule 81(b) of the new Rules of Federal Civil Procedure for the United States District Courts, 28 U.S.C.A. following section 723c. It has thus had existence as a remedy in England for over six centuries and in the federal courts of this country for nearly 149 years. Many states have had and still have the remedy.

In the federal courts a bail bond or recognizance may be sued upon in an ordinary action for debt. See United States v. Zarafonitis, 5 Cir., 150 F. 97, 99, 10 Ann. Cas. 290. Nevertheless, the appellee sought this extraordinary remedy on a lost bond, never restored of record, and from a court never possessing it, without offering a case, either of England, the United States, or of any of the states, in which any court not possessing the record has issued the writ. Nor has our search of the American cases revealed any authority for the exercise of such a power.

Obviously, since no such power has been exercised, what the courts have said concerning it is dicta. In this the text writers and opinions seem unanimous. The writ is indissolubly connected with the record, whether of a judgment it seeks to revive or of a recognizance to be enforced, and is to be issued by the court in which the record rests.

"The scire facias against the bail must issue out of, and be made returnable in, the Court in which the action was depending and in which the record is supposed to remain; and if the recognizance be recorded at Westminister, it must be brought in Middlesex only. * * *."

Foster's Writ of Scire Facias, London ed., page 316.

"Since the writ of scire facias is one which pertains to all courts of record, all courts of record, unless prohibited, have the power to issue the writ. But a scire facias can issue only from the court having possession of the record on which it is founded, and the jurisdiction is generally determined by the record without regard to the residence of the parties, or the sum in dispute. * * *". (Citing state cases.)

56 Corpus Juris, page 871.

"We do not desire to discuss the general question of the jurisdiction of courts to issue this writ. The power to issue it is vested in the circuit courts of the United States, and no legislative action on the part of the states can destroy such power; Collin County Nat. Bank v. Hughes, 8 Cir. 155 F. 389. If the proceeding is based on a judgment, it must be prosecuted and the writ issued in the court pronouncing judgment or having possession of the record, and if the proceeding is based upon a recognizance or other obligation in writing filed in the court, it must be regarded as a record of that court, and the scire facias hence prosecuted therein: Jarvis v. Rathburn, Kirby Conn. 220; State v. Brown, 41 Me. 535; Commonwealth v. Downey, 9 Mass. 520; Osgood v. Thurston, 23 Pick. Mass. 110; State v. Kinne, 39 N.H. 129; Boylan v. Anderson, 3 N.J.L. 529; Turner v. White, 49 N.C. 116; Cowden v. Stevenson, Wright Ohio 116; Grimke's Ex'rs v. Mayrant, 2 Brev. S.C. 202; Gibson v. Davis, 22 Vt. 374." 122 Am.St.Rep. page 91.

"14. Jurisdiction. — A scire facias can issue only out of the court having the record on which it is founded. If the proceeding is based on a judgment, it must be prosecuted and the writ issued in the court pronouncing judgment or having possession of the record, and if based on a recognizance or other obligation in writing filed in a court, the scire facias must be issued by that court. A proceeding by scire facias against bail is not such an original suit as is contemplated by a constitutional provision that one is liable to be sued only in the county in which he resides, but the original suit in which bail was required gives the court jurisdiction to proceed against the bail as a part of the proceedings appertaining to the original suit, though the bail resides in another county. * * *". 24 R. C.L. p. 673.

"§ 1236. Scire Facias. Scire Facias is a judicial writ at common law to revive judgments or to obtain satisfaction thereof, from sureties upon bail or other recognizances taken in proceedings in which the judgment was rendered. It is authorized by federal statute, and is founded on some matter of record, as judgments, recognizances, and letters patent, on which it lies to enforce the execution of them, or to vacate or set them aside. A writ of scire facias to enforce, against an indorser of a writ in an action at law, a liability for the costs under a judgment of a federal court, is an ancillary proceeding within the federal jurisdiction, without regard to the citizenship of the parties or amount in controversy. And so as to a writ of scire facias, instituted and conducted in the court rendering a judgment, to revive that judgment in behalf of the assignee of the one in whose favor the judgment was awarded." Hughes Federal Practice, Vol. 2, pp. 399, 400, § 1236.

Federal opinions in bail bond or recognizance cases make the same statement of the law.

"* * * The procedure to recover on the forfeiture of a bail bond is not controlled by the statutes of any state, except so far as actions at law are controlled by the state practice, and therefore a debt resulting from the forfeiture of a bail bond for the appearance of a party in a criminal case may be enforced by scire facias in the court possessing the record or by an ordinary suit in any other court of competent jurisdiction. * * *" (Italics supplied.) United States v. Zarafonitis, 5 Cir., 150 F. 97, 99, 10 Ann.Cas. 290.

Pullman's Palace-Car Co. v. Washburn, C.C., 66 F. 790, 792, 794, involved the following situation: In a suit in a Massachusetts state court by one Harrison, a non-resident, against the Pullman's Palace-Car Co., Washburn became a surety for costs by endorsement on an original writ, which endorsement was required by Massachusetts statute in suits brought by non-residents. The case was transferred to the United States Circuit Court for Massachusetts, where judgment was for the Pullman's Palace-Car Co. That court issued scire facias against Washburn, the surety, for a judgment for the costs. The federal court, recognizing that the transfer of the record from the state court deprived the Pullman's Palace-Car Co. of the right to have a writ of scire facias issued by the state court, considered the...