Kirk v. United States

• Decision Date: 19 April 1905
• Docket Number: 142.
• Citation: 137 F. 753
• Parties: KIRK v. UNITED STATES et al.
• Court: U.S. Court of Appeals — Second Circuit

137 F. 753

KIRK v. UNITED STATES et al.

No. 142.

United States Court of Appeals, Second Circuit.

April 19, 1905

Appeal from the Circuit Court of the United States for the Northern District of New York.

Taylor L. Arms, Asst. U.S. Atty.

Abram J. Rose, for appellee.

Before WALLACE, TOWNSEND, and COXE, Circuit Judges.

COXE Circuit Judge.

The bail bond signed by complainant was for the appearance of Gaynor to answer an indictment, found in the Eastern Division of the Southern District of Georgia, charging him and others with conspiracy to defraud the United States. The bond required Gaynor to appear in Georgia 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. ' Gaynor was ordered to appear in the court on March 6 and also on March 17, 1902. He did not appear on either day, or on March 7th, to which day the proceedings, at the request of his counsel, were adjourned, and the bond was duly estreated. The United States thereupon acquired a perfect cause of action against the surety on the bond and nothing was thereafter required but to enforce the liability in the proper forum after due notice to the surety.

The course adopted was as follows: On March 17th a writ of scire facias was issued by the District Court for the Southern District of Georgia, directed to the marshal of that district 'and to the Marshals of the United States. ' The writ was entitled 'The United States v. John F. Gaynor Principal, William B. Kirk, Surety,' and after reciting the facts, directed the defendants to show cause at a term of court held at Savannah on the second Tuesday of May, 1902 why $40,000 should not be levied against their property. The only personal service of this writ was made April 5, 1902, on the defendant Kirk at his home in Syracuse, N.Y., he having been for many years a resident of that city and a citizen of the state of New York. On April 2d and again on July 15th the Georgia marshal made return that the defendants could not be found within his district. On July 17th an alias writ of scire facias was issued returnable at Savannah on the second Tuesday of August, 1902, and a similar return 'Not found' was made by the Georgia marshall. There is no proof that the alias writ was ever served personally on the defendant Kirk at Syracuse or anywhere else. On January 12 1903, the orders of the court forfeiting the bond were made final and execution was directed to issue to the marshal for the Southern District of Georgia, to the marshal for the Northern District of New York and to the marshals of the United States. An execution, dated April 2, 1903, was issued to the marshal of the Northern District of New York. It is to prevent the sale of his property under this execution that the present action was instituted by Kirk.

The question to be determined is whether the property of the complainant situated in the state of New York, he being a citizen of that state and a resident of the city of Syracuse can be taken on execution issued on a...