National Surety Co. v. United States

• Decision Date: 29 October 1928
• Docket Number: No. 5496-5498,5539,5540. No. 5496.,5496-5498
• Parties: NATIONAL SURETY CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

29 F.2d 92 (1928)

NATIONAL SURETY CO. v. UNITED STATES.

Nos. 5496-5498, 5539, 5540. No. 5496.

Circuit Court of Appeals, Ninth Circuit.

October 29, 1928.

COPYRIGHT MATERIAL OMITTED

Caldwell & Lycette, of Seattle, Wash., for appellant.

Anthony Savage, U. S. Atty., and Paul D. Coles, David Spalding, and Tom E. De Wolfe, Asst. U. S. Attys., all of Seattle, Wash.

Before RUDKIN, DIETRICH, and HUNT, Circuit Judges.

No. 5496.

Appeal from a judgment in scire facias proceedings. In May, 1924, Charles Unverzagt was arrested in the state of Washington on a fugitive from justice warrant based upon two indictments pending against him in the federal court of New York. He applied for a writ of habeas corpus, which was granted by the United States District Court for the Western District of Washington. 299 F. 1015. After a hearing the writ was discharged. Petition for appeal was thereafter filed, and an order allowing appeal and fixing the appeal bond in the sum of $10,000 was entered, and the bail bond on appeal was filed. On appeal from the order of the District Court denying petition for writ of habeas corpus, the order of the District Court was affirmed and mandate ordered forthwith. Unverzagt v. United States (C. C. A.) 5 F. (2d) 494.

The writ herein sets forth that the appeal bond was conditioned for the appearance of Unverzagt before the United States District Court for the Western District of Washington, at Seattle, "from time to time and term to term thereafter to abide by and obey a judgment and order of this court previously entered" against defendant, discharging a writ of habeas corpus and ordering his removal; that in the District Court on May 13, 1925, Unverzagt was called to come into court to answer and abide by the order previously entered by the District Court 299 F. 1015, and affirmed by the Circuit Court of Appeals 5 F.(2d) 492; that he came not, but made default; that it was then ordered that Unverzagt, as principal, and the National Surety Company, as surety, forfeit and pay to the United States $10,000 according to the tenor and effect of "said recognizance and property bond now in the hands of the clerk of said court, unless they appear and show sufficient cause to the contrary." The writ commanded that its contents be made known to the principal and surety, and that they be summoned to show cause, if any they had, why judgment nisi should not be made absolute, and why execution should not issue against them "upon said property bond under the judgment aforesaid, together with costs," etc.

By answer the surety company admitted the execution of a bail bond, but denied that it was conditioned on the appearance of Unverzagt in the District Court from time to time and term to term, to abide by the judgment and order of the District Court previously made against him; denied that the surety company or defendant had made any default under the bond. The surety company then pleaded as four affirmative defenses: (1) That Unverzagt was arrested in Washington on May 7, 1924, on a fugitive from justice warrant based upon two indictments pending against him in New York; that habeas corpus proceedings were instituted by Unverzagt in the District Court to test the legality of the arrest; that during the pendency of the habeas corpus proceedings Unverzagt was again arrested by the United States marshal, the second arrest being based upon "one of the New York indictments" upon which Unverzagt had been originally arrested in Washington; that upon habeas corpus proceedings, instituted to test the legality of said second arrest, the writ was ordered discharged; that appeal from the order was taken to the Circuit Court of Appeals for the Ninth Circuit; that Unverzagt was given his liberty pending the appeal "on a property bond in the sum of $10,000, in which Unverzagt was principal and M. H. Casey and A. A. Pendleton were sureties; that said appeal was to test the legality of the arrest on one of the indictments said defendant had originally been arrested on at Blaine, Wash.; that said second arrest was on the same charge on which defendant was originally arrested; and that "said property bond superseded and took the place of the bail bond previously executed by this surety." (2) That the writ of scire facias issued commanded the surety company to show cause why execution should not issue against it under said "property bond," and that the property bond intended to be forfeited was the property bond signed by Unverzagt and one Casey and one Pendleton, and that the writ issued against this appellant was issued by mistake. (3) That, when appellant executed the bond as surety, the only order which had been issued was one dismissing the writ of habeas corpus; that no order of removal had been issued, and that Unverzagt had never been ordered to do anything which he had not done. (4) That the order on which the writ of scire facias issued alleges that Unverzagt failed to abide by the judgment of the court previously entered, that he had not failed to abide by any order of the court previously entered, and that said order of scire facias and the writ issued were null and void.

The government filed no reply to any of the four affirmative defenses. By stipulation the matter was tried to the court. Unverzagt did not appear. The bill of exceptions recites that, before the trial began, counsel for the government stated that he wished to demur to the answer of the surety company; that counsel for defendant stated he had no objection to the demurrer being made at that time, or orally, and suggested that it would be better to try the case on the evidence; that the court, after stating that the matter could have been disposed of on motion, proceeded to consider the demurrer, and asked what the record showed as to whether Unverzagt was called in May, 1925; that the clerk replied that forfeiture was made May 13, 1925, "according to the docket;" that thereupon counsel for the government offered in evidence the bond and upon being asked by the court what he had to say respecting the demurrer, replied that the amended answer constituted no defense to the bond offered or to the forfeiture; that after argument the court sustained "the oral demurrer interposed by counsel for the government"; that defendant excepted; that in ruling upon the demurrer the court stated that it took judicial notice of the fact as shown by the record that Unverzagt was called on May 13, 1925, and that there was no merit in the first affirmative defense; that counsel for defendant then stated that he elected to stand upon the answer; that thereupon the court sustained the demurrer and allowed an exception; that counsel for the government then asked that the forfeiture be made absolute, whereupon counsel for defendant stated that he elected to stand upon the answer and preserved an exception; that thereupon the court ordered that the forfeiture be made absolute, and that an order be prepared and submitted; that counsel for defendant then asked the court whether the matter had been disposed of on the demurrer or on the evidence; that the judge replied that counsel for the government had introduced the bond in evidence, and that the court had decided the case on both the evidence and the demurrer; that he ruled upon the demurrer first and the evidence afterwards, the record being before him; and that to these rulings defendant preserved exceptions.

The bail bond, introduced by plaintiff, was executed on May 9, 1924, for $10,000, and after recital of the habeas corpus proceeding, and that petitioner was ordered removed and remanded to custody, and that he was allowed an appeal and was admitted to bail pending such appeal, was conditioned that, if Unverzagt shall appear in the Circuit Court of Appeals on such day or days as might be appointed for the hearing of the cause in said court, and shall prosecute his appeal and abide by the order made by the Circuit Court of Appeals in said cause, and shall surrender himself in execution of the judgment appealed from as said court may direct, if the judgment against him shall be affirmed or the appeal dismissed, and shall abide by all orders made by the "said court or by said District Court, provided the judgment and order against him shall be reversed," by the Circuit Court of Appeals, then the obligation shall be null and void; otherwise, to be and remain in full force and virtue. It is alleged in the writ that on the 9th of May, 1924, the bail bond and recognizance was filed in the District Court with the clerk thereof.

The surety company moved for a new trial and the motion was denied. The order of denial, after referring to the hearing on the return to the writ of habeas corpus, had May 7, 1924, continued: "At which time the court ordered the writ discharged and the defendant removed, and the following correct entry was made in the clerk's docket, to wit: `May 7, Ent. record hearing on writ. Writ to be discharged, appeal bond fixed at $10,000.00 and order of removal granted in default of bail, and motion for stay of proceedings granted until A. M. Friday for entry of final order;' that petition for appeal was filed on May 9th, and order entered allowing the same; and it further appearing that all the parties treated said order and minute entry of May 7th as a final order, and the court being of the opinion that the petition for rehearing should be denied," etc.

HUNT, Circuit Judge (after stating the facts as above).

Plaintiff's general demurrer struck at the whole answer. Therefore, when the court sustained it, defendant, by standing upon its answer, could offer no evidence, and it made no attempt to do so. But the court went ahead, and after permitting plaintiff to introduce the bond in evidence, and after stating that the court took notice of the former journal entry of forfeiture, rendered judgment against the defendant. With the case in that situation, the question for decision by this court is whether the...