American Surety Co. v. People of State of Colorado

• Decision Date: 12 November 1927
• Docket Number: No. 7800.,7800.
• Citation: 22 F.2d 624
• Parties: AMERICAN SURETY CO. OF NEW YORK v. PEOPLE OF STATE OF COLORADO, for Use of LITTLE.
• Court: U.S. Court of Appeals — Eighth Circuit

22 F.2d 624 (1927)

AMERICAN SURETY CO. OF NEW YORK v. PEOPLE OF STATE OF COLORADO, for Use of LITTLE.

No. 7800.

Circuit Court of Appeals, Eighth Circuit.

November 12, 1927.

Edgar McComb, of Denver, Colo. (Rodney J. Bardwell, Robert G. Strong, and Rodney J. Bardwell, Jr., all of Denver, Colo., on the brief), for plaintiff in error.

Edwin H. Park, of Denver, Colo., for defendant in error.

Before LEWIS, Circuit Judge, and POLLOCK and SCOTT, District Judges.

POLLOCK, District Judge.

This was an action at law by the people of the state of Colorado, to the use of Lenora Little (hereinafter called "plaintiff"), against Joseph M. Hutchinson, as sheriff of Chaffee county, Colorado, and the American Surety Company, the surety on his official bond, as defendants, to recover damages for personal injuries inflicted upon plaintiff in causing her wrongful arrest. The case was once heard, resulting in a judgment for defendants, which judgment was on proceedings in error reversed and remanded for a new trial. A second trial was had on the same pleadings on which it had been heard at the former trial, and resulted in a joint verdict and judgment against both defendants. After judgment, separate motions for a new trial were interposed by defendants, and the same were on the 22d day of January, 1927, overruled and denied. Thereafter, and on January 26, 1927, a writ of error was issued to the American Surety Company (hereinafter called the "Surety Company") to review this judgment. Also on the same day defendant Surety Company alone gave its bond on appeal and had a citation issued and served.

While it does not appear any petition for the writ of error was at any time filed or presented to the court, or that the writ was granted on application made in open court, it does not appear from the record assignments of error were presented to the trial court at the time the writ was granted. The record shows the assignments of error made by the Surety Company alone were filed in court on January 31, 1927, five days after the writ was granted. It does not appear any steps were taken by the Surety Company to have its joint judgment debtor, the sheriff, made a party to the attempted proceedings in error until after the lodgment of the record in this court, and not until May 5, 1927, when a motion was interposed in this court by the Surety Company to permit the record to be changed by adding to the writ of error and all other papers the name of the joint debtor, the sheriff, as the plaintiff in error, or, in the event he refused to so join as plaintiff in error therein, then to make him a defendant in error to the record. This motion to amend the pleadings in error, and a motion of plaintiff to dismiss the writ of error are pending in this court.

We have examined these motions with care, and are of the opinion the motion of the Surety Company to amend the record must be denied, and the motion to dismiss this proceeding in error taken alone by the Surety Company from the joint judgment against itself and the sheriff must be granted, and this writ of error...