Manzo v. United States

• Decision Date: 17 July 1933
• Docket Number: No. 9632.,9632.
• Citation: 66 F.2d 579
• Parties: MANZO et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

66 F.2d 579 (1933)

MANZO et al. v. UNITED STATES.

No. 9632.

Circuit Court of Appeals, Eighth Circuit.

July 17, 1933.

William G. Lynch, of Kansas City, Mo., for appellants.

William L. Vandeventer, U. S. Atty., and Claude E. Curtis, Asst. U. S. Atty., both of Kansas City, Mo.

Before GARDNER, SANBORN, and BOOTH, Circuit Judges.

BOOTH, Circuit Judge.

This is an appeal from a judgment entered against appellants in a scire facias proceeding brought to collect upon an appearance bond. Appellants were sureties on the bond.

The main facts, undisputed, are substantially as follows: Lonnie Affronti was charged in three indictments returned by the Grand Jury in the Western District of Missouri with violations of the narcotic laws of the United States. In connection with each of these indictments, a capias was issued and the bond fixed at $5,000 to be taken by a United States commissioner. Thereafter, Affronti was arrested and taken before United States Commissioner James S. Summers in each of the three cases. With him appeared Rocco Manzo and Angelina Manzo, the appellants herein, who offered themselves as sureties on such bonds as should be taken. It was represented to the United States commissioner that a bond in the sum of $3,000 had already been given by Affronti conditioned for his appearance upon one or more of said charges against him. It was explained to Affronti and his proffered sureties that the bond required his appearance forthwith, and that, when his cases were docketed for trial, the usual publication of the setting of the cases would be made so that he would be advised of the dates when his cases would be called. The United States commissioner, in view of the fact that one bond for $3,000 had already been given by Affronti, took one bond for $12,000 instead of taking three bonds. There was no misunderstanding by Affronti or by his sureties as to the nature of the charges against him, nor as to the fact that the total amount of the bonds required was $15,000. Thereafter Lonnie Affronti was duly notified by the usual publication of the setting of his cases. He failed to appear. The $12,000 bond was duly forfeited; and the present scire facias proceeding was commenced to collect from the sureties. Affronti made no appearance in the proceeding. The sureties answered and defended.

Among the defenses urged were: (1) That the bond was taken without authority of law and not in conformity with any order of the court; (2) that the United States commissioner had no authority to take a bond in a felony case; (3) that the bond did not set out the charges against Affronti; (4) that the United States commissioner had no authority to take a "forthwith" bond; (5) that the court was not in session on the day the bond was given, so that it was impossible for Affronti to appear "forthwith"; (6) that the bond did not conform to the orders of the court nor identify the charges against Affronti; (7) that the bond did not describe or designate any offense against the laws of the United States, and did not require Affronti to answer any such charge.

The scire facias proceeding came on for hearing, and was heard by a judge of said United States District Court for the Western District of Missouri. The government appeared by its attorney; the sureties appeared by their attorney; Affronti made no appearance.

Evidence was taken on behalf of the several parties appearing. Thereafter the following judgment was entered:

"Now on this day this cause coming duly on for hearing, the plaintiff being represented by the United States Attorney and the defendants Rocco Manzo and Angelina Manzo being represented by their attorney, W. G. Lynch, and this matter of scire facias being submitted to the Court, the Court first having heard all of the evidence presented does find the issues in favor of the plaintiff and against the defendants. And the Court finds that the plaintiff is entitled to judgment against the defendants Rocco Manzo and Angelina Manzo and each of them in the sum and for the amount of $12,000.00.

"It Is Therefore By The Court Ordered, Adjudged and Decreed that the plaintiff, the United States of America, have and recover of and from the defendants Rocco Manzo and Angelina Manzo and each of them the sum of $12,000.00 together with interest and the costs herein expended and have execution therefor."

The trial was had before a United States District Judge. No jury was called, and none demanded. No written waiver of a jury was filed, and no oral waiver is shown by the record. No special findings were made and none requested. No declarations of law were requested. No motion for judgment in behalf of the defendants was made at the close of the case, and no equivalent action was taken in their behalf.

In this state of the record, review by this court of the proceedings in the trial court is extremely limited.

The writ of scire facias issued on a forfeited appearance bond is a common-law judicial writ, and founded on the record of the court. It is attended by many of the incidents due to its common-law origin.

Courts of the United States are expressly authorized to issue such writs. 28 USCA § 377, reads: "The Supreme Court and the district courts shall have power to issue writs of scire facias. The Supreme Court, the circuit courts of appeals, and the district courts shall have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law."

In Winder v. Caldwell, 14 How. 434, 443, 14 L. Ed. 487, the court said: "A scire facias is a judicial writ used to enforce the execution of some matter of record on which it is usually founded; but though a judicial writ, or writ of execution, it is so far an original that the defendant may plead to it. As it discloses the facts on which it is founded, and requires an answer from the defendant, it is in the nature of a...