Kirk v. United States

• Decision Date: 21 June 1904
• Parties: KIRK v. UNITED STATES
• Court: U.S. District Court — Northern District of New York

131 F. 331

KIRK v. UNITED STATES

United States Circuit Court, N.D. New York.

June 21, 1904

George B. Curtiss, U.S. Atty., and Taylor L. Arms, for the United states.

Kellogg & Rose, for defendant.

HAZEL District Judge.

This suit is for an injunction to restrain and enjoin the United States and C. D. McDougall, as United States marshal for the Northern District of New York, from seizing the property of the complainant pursuant to an execution in favor of the United States issued out of the United States District Court for the Eastern Division of the Southern District of Georgia. The writ of execution was dated January 12, 1903. It was issued in a scire facias proceeding instituted on March 17 1902. It is essential to a complete understanding of the controversy that the salient facts be briefly stated. They are substantially as follows: On January 20, 1902, in New York City, the complainant became surety upon a recognizance for the appearance of one John F. Gaynor, who had been there arrested upon a warrant issued by United States Commissioner Shields, and who admitted the accused to bail to appear before the Georgia court in conformity to section 1014 of the Revised Statutes of the United States (U.S.Comp.St. 1901, p 716). The information before the commissioner was based on an indictment by the grand jury of the Georgia district charging said Gaynor and others with the crime of conspiracy, in violation of section 5440 of the Revised Statutes of the United States (U.S.Comp.St. 1901, p. 3676). Proceedings were had for the removal of the accused before a commissioner in the territorial district where the defendants were found. Pending the execution of the commissioner's order of removal, Gaynor made application for a writ of habeas corpus. This was denied by the Circuit Court for the Southern District of New York. An appeal to the Supreme Court of the United States resulted in affirming this decision. The recognizance which is the basis of this suit was filed in the office of the clerk for the Eastern Division, Souther District of Georgia, on January 22, 1902, and recites that Gaynor and others were charged with conspiracy to the defraud the United States of large sums of money by devising a fraudulent scheme to present false accounts to an officer of the United States; that the prohibited offense was committed on January 1, 1897, within the Eastern Division of the Southern District of Georgia; that an indictment had been found by a grand jury of said district against Gaynor; and further, that probable cause existed for believing him guilty of the offense charged. It was stated in the recognizance that the accused had been held to answer by the commissioner in the district where the indictment was found. The condition of the recognizance was in the following words:

'Now, therefore, the condition of this recognizance is such that, if the said John F. Gaynor shall personally appear at the term of the District Court of the United States for the Eastern Division of the Southern District of Georgia, to be holden on the second Tuesday in February, 1902, and from day to day and from term to term should the case be continued, and then and there to answer to such matters and things as have or shall be objected against him, and to stand to, abide, and perform the orders of the court, and not depart the said court without leave, then this recognizance to be void; otherwise to remain in full force and virtue.'

Other facts appearing may be stated chronologically. On February 11, 1902, Gaynor personally and by counsel appeared before the proper court having jurisdiction of the accused, and filed a plea in abatement to the indictment. A demurrer to the plea having been interposed by the government, the court, on February 17, 1902, sustained the same. Thereupon the defendant demurred to the indictment. Subsequently, on February 24th, the court overruled the demurrer as to counts 1 to 8, inclusive, and sustained it as to counts 9 and 10. The defendant Gaynor then entered a plea of not guilty to the indictment. During the discussion between the court and counsel regarding the time of trial, it was, in effect, stated by the court that in all probability another indictment against the accused persons would be found by the grand jury in attendance at that term of court, and therefore notice should be taken of such impending action. These observations by the court resulted in a general discussion between court and counsel on both sides touching notice to the defendant of any future action by the grand jury, and fixing the time of trial of the indictment to which the defendants had that day entered a plea of not guilty. Finally, March 17, 1902, a date in the same term, was named by the court for the trial upon this indictment, No. 322. On February 28th, at the same term, another indictment was presented to the court by the grand jury against Gaynor and others (No. 371), charging them with conspiracy to defraud the United States. Thereupon the defendants were directed by order duly entered and served on counsel for defendants to personally appear on March 6, 1902, to plead thereto. Such order in terms directed the attorneys for the defendants 'to stand to, abide, and perform the orders of the court in the premises. ' The accused Gaynor did not appear on the date appointed. His counsel, however, were present in court. His surety was admonished to produce his principal, but he failed to do so. Counsel for defendants asserted their belief that Gaynor would appear on the following day, and accordingly moved a continuance, which was granted. On the next day the recognizance in question was estreated on account of Gaynor's default in appearing. It was accordingly decreed by the court that the United States recover judgment against Gaynor and his surety in the sum of $40,000, the amount of the forfeited recognizance, unless cause be shown at the succeeding term why such decree and judgment should not be made final. A writ of scire facias was directed to issue to the marshal of the Southern District of Georgia and to the marshals of the United States for service upon Gaynor and Kirk, principal and surety, respectively. On March 17, 1902, the day set for the trial on the first indictment, as above mentioned, on account of Gaynor's absence from court, the surety being first called upon, as required by the rules and practice of the court, to produce his principal, the bond was again estreated, and the prior estreatment proceedings confirmed. The writ of scire facias was made returnable at the May term of court. Personal service thereof upon the surety was not made in the state of Georgia or within the territorial district of the court which directed its issuance, but the complainant was served on April 5, 1902, at the city of Syracuse, state of New York, which has been his continuous residence. An alias writ of scire facias was issued on July 17, 1902. The marshal for the Southern District of Georgia made return of 'Not found' to both writs. No plea or answer was interposed to stay the final mandate of said court, and judgment was entered in favor of the United States. In accordance with section 986 (U.S.Comp.St. 1901, p. 708) an execution was issued to the marshals of the United States directing such officers to levy upon the property of the complainant wherever found. No attempt is here made to set forth the facts with as much detail or as comprehensively as they appear in the exhaustive opinion of Judge Ray granting an injunction pendente lite. For a full statement of such facts reference is directed to that decision, which may be found reported as Kirk v. United States (C. C.) 124 F. 324.

It will be noted from the practically undisputed facts that two writs of scire facias were issued against the complainant and his bail, and were returned nihil by the marshal of the district to which they were issued. The legal propositions involved are of much importance, as no strictly parallel and reported authority is found in the courts of the United States to guide their determination. It is contended by the complainant, among other things, that, as the surety was not found within the state of Georgia, he never having submitted himself to the jurisdiction of the court, and owning no property in that state, the sci. fa. could have no extraterritorial effect as a basis for a personal judgment hence the writ of execution was without legal force and effect. This question will first be considered. That the court had jurisdiction to enforce a forfeited recognizance or bail bond by writ of scire facias or by action must be conceded. Insley v. United States, 150 U.S. 512, 14 Sup.Ct. 158, 37 L.Ed. 1163. See also, section 716 Revised Statutes of the United States (U.S.Comp.St. 1901, p. 580). Whether, admitting the power and jurisdiction of the court to enforce the judgment on scire facias, such proceeding bound the surety, who was neither personally served with process in the state where such steps were instituted nor domiciled therein, and who did not appear or submit himself to the jurisdiction of the court otherwise than by joining in the recognizance, is a point not free from difficulty. Scire facias proceedings in a civil case are in the nature of an original action to the extent of enabling the defendant to plead. U.S. v. Payne, 147 U.S. 692, 13 Sup.Ct. 442, 37 L.Ed. 332; Winder v. Caldwell, 14 How. 442, 14 L.Ed. 487. The writ in every case must apprise the defendants of the facts on which it is based, and the averments therein contained may be controverted or avoided. Irregularities may be taken advantage of in the usual way, and a trial had upon the issues presented by the writ and the answer filed, as in an action. U.S. v. Winstead (D.C.) 12 F. 50; U.S. v. Van...