Detroit Fidelity & Surety Co. v. United States

• Court: U.S. Court of Appeals — Sixth Circuit
• Writing for the Court: DENISON and KNAPPEN, Circuit , and TAYLOR
• Citation: Detroit Fidelity & Surety Co. v. United States, 36 F.2d 682 (6th Cir. 1930)
• Decision Date: 10 January 1930
• Docket Number: No. 5462.,5462.
• Parties: DETROIT FIDELITY & SURETY CO. v. UNITED STATES.

36 F.2d 682 (1930)

DETROIT FIDELITY & SURETY CO. v. UNITED STATES.

No. 5462.

Circuit Court of Appeals, Sixth Circuit.

January 10, 1930.

John L. Dowling, of Cleveland, Ohio (Dowling & Dowling, of Cleveland, Ohio, on the brief), for appellant.

Thos. O. Nevison, of Cleveland, Ohio (Wilfred J. Mahon, of Cleveland, Ohio, on the brief), for the United States.

Before DENISON and KNAPPEN, Circuit Judges, and TAYLOR, District Judge.

TAYLOR, District Judge.

Appellant became surety on a bail bond or recognizance, which provides, so far as material now, that the defendant "shall" appear "from term to term * * * to answer an indictment * * * and shall then and there abide the judgment of this court and not depart the court without leave thereof. * * *" Judgment was entered against the surety, from which it has appealed.

The defendant appeared on November 15, 1927, and pleaded guilty, whereupon he was sentenced "to be imprisoned * * * fourteen months from January 3, 1928, * * * former bond to remain in full force and effect until defendant surrenders himself to the United States marshal for conveyance to said place of imprisonment; defendant given permission to leave the jurisdiction of the court." This appears upon the court's journal. The clerk's docket entry, in slightly different words, says execution of sentence "suspended until January 3, 1928." Within a day thereafter a warrant, which embraced in substance the journal and docket entries, and directed the marshal to "keep and safely deliver" the defendant to the warden, was prepared by the clerk. According to indorsement on the warrant, it reached the marshal November 17, 1927, but was not executed, because the defendant was never apprehended.

Since it is conceded that the bond is in form authorized by the Ohio statutes, where it was executed, the questions presented may be decided without reference to any statute. The appellant relies upon the defenses (a) that the principal fully complied with the conditions of the recognizance; and that (b) a suspension of execution of sentence and consent by the court without consent of the surety that defendant might leave the jurisdiction was such extension or alteration of the terms of the recognizance as released the surety from liability.

The first defense raises the question whether there was compliance with the conditions of the bond. The bond is conditioned that the principal "abide the order and judgment" of the court, and "not depart the court without leave." The judgment of the court in effect was that the defendant surrender himself to the United States marshal on January 3d, to be transported to the place of imprisonment.

The phrase "abide by" means to adhere to; to submit to; to obey; to accept the consequences of. Order of United Commercial Travelers v. Smith (C. C. A. 7) 192 F. 102; Webster's New International Dictionary. The verb "abide" may also have the same meaning, if, from the connection in which used, it clearly signifies more than passive waiting. The phrase "abide the order and judgment of the court," in the bond, is followed by the phrase "and not depart the court without leave thereof," thus, we think, making it clear that the verb "abide" was used in the broader sense, and as an addition to the phrase which forbade unauthorized departure, though such addition might not have been necessary, to justify the conclusion we reach.

The cases relied upon by appellant in support of this defense have released the sureties on bonds similar to the one here involved upon the idea that, after sentence and without express order, there is an implied change of custody from the bail to the law, and that with such implied legal change of custody there is no further liability on the part of the surety or bail. Ewing v. U. S. (C. C. A. 6) 240 F. 241, Suggs v. State, 129 Tenn. 500, 167 S. W. 123, Ex parte Williams, 114 Ala. 29, 22 So. 446, and Miller v. State of Alabama, 158 Ala. 73, 48 So. 360, 20 L. R. A. (N. S.) 861, are typical. In the instant case no such implication arises, since the judgment...