National Surety Co. v. Universal Transp. Co., Inc.
| Citation | 256 F. 450 |
| Decision Date | 14 February 1919 |
| Docket Number | 168. |
| Parties | NATIONAL SURETY CO. v. UNIVERSAL TRANSP. CO., Inc. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Kirlin Woolsey & Hickox, of New York City (John M. Woolsey, of New York City, of counsel), for the motion.
William J. Griffin, of New York City (T. Langland Thompson and James S. Darcy, both of New York City, of counsel), opposed.
Before ROGERS, HOUGH, and MANTON, Circuit Judges.
This plaintiff in error was surety on a bond given to secure the demand of the party plaintiff or libelant in the cases which finally reached us as The Ada, 250 F. 194, 162 C.C.A. 330 and Rederiaktiebolaget v. Universal, etc., Co., 250 F. 400, 162 C.C.A. 470. As the result of the decision last mentioned, judgement for a very large sum was duly docketed in favor of the Universal Company and against the Rederiaktiebolaget.
Execution thereupon having been returned nulla bona, and the abovenamed surety company, as surety, failing to pay on demand, the execution plaintiff (Universal Company) procured from the court below, in which said judgment was docketed and where the surety company's bond remained of record, a writ of scire facias, commanding the surety company to show cause why execution should not issue against it for the amount of the aforesaid judgment.
The surety company filed a traverse in which it first denied any jurisdiction to issue the writ, and then in substance asserted that, because Universal Company had not succeeded in all the claims it had advanced against the Rederiaktiebolaget and its steamship Ada, and had attempted to collect its final judgment, first by ordinary execution, then through proceedings supplementary thereto, and also by suit against the surety company and on the bond, in the courts of New York, and had done all these things before resorting to scire facias, therefore said Universal Company was 'estopped from asserting, claiming, or recovering any amount' from the surety company 'by, through or from' the bond it had admittedly executed and delivered for the very purpose of securing the demand which had finally been reduced to judgment.
The lower court heard the issues of the traverse before a jury the plea to the jurisdiction Judge Mayer overruled (opinion reported in 252 F. 293); he also overruled the other matters called defenses, and directed judgment that execution issue. All stays of proceedings were refused, and,...
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Brown v. Carver, 218.
...presents nothing for our review. The practice of a motion to dismiss or affirm we recognize in this court. National Surety Co. v. Universal Transp. Co., 256 F. 450. Though the assignments present no question on which we could review the judgment, the appeal is in form regular, and the bette......
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...on writ of scire facias, the cases of Universal Transportation Co., Inc. v. National Surety Co. (D. C.) 252 F. 293, appeal denied 256 F. 450 (C. C. A. 2); Hollister v. United States, 145 F. 773 (C. C. A. 8), are of I. On such a motion as this in a scire facias, I think it clear that the cou......
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