77 F.2d 673 (8th Cir. 1935), 10065-10067, La Grotta v. United States

Docket Nº:10065-10067.
Citation:77 F.2d 673
Case Date:May 06, 1935
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 673

77 F.2d 673 (8th Cir. 1935)










Nos. 10065-10067.

United States Court of Appeals, Eighth Circuit.

May 6, 1935

Page 674

Appeal from the District Court of the United States for the District of Nebraska; James A. Donohoe, Judge.

Eugene D. O'Sullivan and M. O. Cunningham, both of Omaha, Neb. (Charles J. Southard, of Omaha, Neb., on the brief), for appellants.

Frederick G. Hawxby, Asst. U. S. Atty., of Omaha, Neb. (Charles E. Sandall, U. S. Atty., and Ambrose C. Epperson, Asst. U. S. Atty., both of Omaha, Neb., and Barlow Nye, Asst. U. S. Atty., of Lincoln, Neb., on the brief), for the United States.

Before STONE, SANBORN, and FARIS, Circuit Judges.

FARIS, Circuit Judge.

The three cases above entitled were by consent argued and submitted together. Each of them is a plenary suit by the United States to recover on a forfeited bail bond in a criminal case. These bail bonds, toward which in each case the chief attack is directed, are, save for names, dates, and amounts, wholly similar. Extrinsic and particular facts do not so far differ as to justify separate opinions. Discussion of differentiating facts will, however, be had.

In the La Grotta case, No. 10065, appellant as surety for one Roy Walton was on trial to the court, adjudged to pay appellee the sum of $3,000 on a forfeited bail bond, which reads thus, signatures omitted: 'Know All Men By These Presents, That we, Roy Walton as principal, and A. La Grotta, as surety or sureties, are held and firmly bound unto the United States of America in the penal sum of three thousand Dollars ($3000.00), lawful money of the United States, to the payment of which, well and truly to be made, we bind ourselves and representatives forever. The condition of the foregoing obligation is such that if the said Roy Walton shall personally appear before the District Court of the United States for the District of Nebraska, Nebraska Division, held in Omaha in said District, from day to day of the present term thereof, and from day to day of any subsequent term and then and there to answer to all matters and things as may be objected against him, and then and there abide the orders and judgment of said Court, and not depart without leave; and if sentenced to be imprisoned, shall surrender himself or herself to the United States Marshal at the time when his or her sentence of imprisonment is to begin, then this obligation to be void, otherwise to remain in full force and virtue.'

This bond was executed and filed, March 29, 1928, and during the September term, 1927, of the Omaha Division. The next term in this division began on the first Monday in April, 1928. Thereafter (but date indefinite), Roy Walton

Page 675

was indicted for a violation of the Harrison Anti-Narcotic Act (26 USCA §§ 211, 691-707). On December 5, 1928, and in the September term, 1928, appellant was notified to produce Walton in court on December 11, 1928. He failed to do so and thereafter on December 13, 1928, the bond of appellant was ordered to be forfeited. A plenary suit on the bond against both Walton and appellant was filed on January 26, 1929. No service was had on Walton, but appellant appeared and answered; his demurrer to the petition of the government having been overruled.

The trial was to the court a jury being waived. The evidence adduced was largely on stipulated, or agreed facts, supplemented only, by entirely colorless testimony given by appellant, testifying for himself. At the conclusion of the trial, both sides moved for judgment, thus conceding that there are no disputed facts in the case. Among other reasons, why La Grotta was entitled to judgment, he urged that 'the bail bond signed by him, as charged in this case, is not in manner and form as provided by law and is a nullity.' Other grounds, as that there had been no willful default, and so all or a part of the penalty of the bond should be remitted under the provisions of section 601, title 18 USCA, and that Walton was confined for a time in a federal penitentiary, on conviction in Oregon, of a similar offense, scarcely need to be mentioned. The court rendered judgment against appellant for the full sum of the bond and interest and this appeal followed.

In limine, appellee moves to dismiss the appeal and to strike the bill of exceptions from the record. As authority for its motion to dismiss, appellee urges the case of Law v. United States, 266 U.S. 494, 45 S.Ct. 175, 69 L.Ed. 401. On its bare face the above case seems to be authority for the position of appellee. But we think it clear that a fact present in the Law Case, supra, is lacking in the court's statement of the facts therein. That fact is that there was a conflict in the evidence which the trial court there had the right to resolve; here no such conflict existed, only questions of law were left in the case. On no other theory are we able to reconcile the Law Case, supra, with what we consider the settled rule. An examination of the opinion of thr trial court confirms the above view of the facts in the Law Case, supra. So, we think it plain that the Law Case, is not an authority for appellee's motion to dismiss, or to be exact, to affirm.

If the case of United States v. Payne (C. C. A.) 72 F.2d 593, is to be followed, the bill of exceptions must be stricken from the record. For the latter case seems to hold that if the time for filing a bill of exceptions after the end of the current, or trial term be extended, such extension must appear in the bill of exceptions itself, and not in what is sometimes loosely called the record proper, or primary record. In the case at bar, the extension, and a sufficient one, does appear in the record proper, but does not appear in the bill itself. Undoubtedly, in a highly technical way the objection is well taken; but few courts have put an appellant out of court for failure to print the order precisely where it belongs. Here, the order extending the term sixty days, for the purpose of filing a bill of exceptions, appears in the record proper; but no mention is made of this order in the bill itself. It seems an unfair hardship to require an appellant after having printed an order of extension in the record proper, to again print it in the bill of exceptions; or to state the situation more precisely, to see to it, that the order of extension is put, not in the record proper, but at the tail for the bill of exceptions, where concededly of right it belongs, upon penalty of having such bill stricken from the record. We are inclined to the view that in such situation, the lately amended statute of jeofails should apply and the motion should be overruled. Section 391, title 28 USCA.

Coming to the merits of the case, it is obvious that the fact that Walton was convicted and sent to the federal penitentiary from the state of Oregon in July, 1929, is no legal reason for his failure to answer on his bail bond on December 13, 1928, when the forfeiture was taken. Nothing is to be found...

To continue reading