187 U.S. 315 (1902), 381, Fidelity & Deposit Company of Maryland v. United States

Docket Nº:No. 381
Citation:187 U.S. 315, 23 S.Ct. 120, 47 L.Ed. 194
Party Name:Fidelity & Deposit Company of Maryland v. United States
Case Date:December 01, 1902
Court:United States Supreme Court

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187 U.S. 315 (1902)

23 S.Ct. 120, 47 L.Ed. 194

Fidelity & Deposit Company of Maryland


United States

No. 381

United States Supreme Court

December 1, 1902

Submitted October 31, 1902




1. This Court has already sustained the power of the Supreme Court of the District of Columbia to adopt a rule providing that, if the plaintiff or his agent shall file an affidavit in any action arising ex contractu setting out distinctly his cause of action, etc., and serve the defendant with copies thereof and of the declaration, he shall be entitled to judgment unless the defendant shall file, along with his plea, if in bar, an affidavit of defense

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denying the right of the plaintiff as to the whole or some specific part of his claim, and specifically also the grounds of his defense, and has also sustained the validity of the rule as adopted (No. 73) by said court. Smoot v. Rittenhouse, decided January 10, 1878.

The rule as adopted does not deprive a defendant who files a plea in bar and demands a trial by jury, but who also fails to file the affidavit of defense required by the rule, of a right to a trial by jury, but simply prescribes the means of making an issue in regard to which, if the same be made as prescribed, the right of trial by jury accrues.

2. Congress has the power to change forms of procedure, and it has been decided by this Court (Smoot v. Rittenhouse, supra,) that the power to enact rules of procedure has been delegated to the Supreme Court of the District of Columbia.

3. Exceptions based on disputable considerations of the spirit of the rule will not be taken against the interpretation of the Supreme Court of the District of Columbia, which has administered the rule for many years.

4. In this case, it was held that the affidavit filed by the plaintiff in error, defendant below, was not sufficient to comply with the rule.

This action was brought in the Supreme Court of the District of Columbia by defendant in error against one Peyton D. Vinson, as principal, and plaintiff in error as surety, on certain bonds, to recover the sum of $530.06. One of the bonds was in the penal sum of $25,000, for the faithful performance of the covenants and conditions of a contract entered into by said Vinson with the District of Columbia. It was covenanted in the bond that Vinson would "promptly make payments to all persons supplying him with labor or materials in the prosecution of the work provided for in [23 S.Ct. 121] said contract." And it was alleged in the declaration that Lewis E. Smoot furnished said Vinson certain materials, which were used by the latter in the completion of the work under the contract, of the value $599.73, of which amount only $206.95 was paid, leaving a balance of $392.78 due.

The other bond was for the penal sum of $6,000, with like covenants and conditions. The declaration alleged that said Smoot furnished materials of the value of $143.28 to Vinson, which were used in the performance of the latter's contract with the District of Columbia, and that said amount was not paid, though demanded. And recovery of said amounts due was prayed against Vinson and the plaintiff in error, amounting to

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the sum of $530.06. The declaration was accompanied by an affidavit made by Smoot under the requirements of Rule 73 of the court, hereinafter set out. The affidavit was very full and circumstantial, and virtually repeated the declaration.

The plaintiff in error filed pleas to the declaration in which it...

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