Southern Surety Co. v. United States

• Decision Date: 12 December 1927
• Docket Number: No. 7711.,7711.
• Citation: 23 F.2d 55
• Parties: SOUTHERN SURETY CO. OF DES MOINES, IOWA, v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

23 F.2d 55 (1927)

SOUTHERN SURETY CO. OF DES MOINES, IOWA, v. UNITED STATES.^*

No. 7711.

Circuit Court of Appeals, Eighth Circuit.

December 12, 1927.

Louis H. Salinger, of Carroll, Iowa, for plaintiff in error.

Byron S. Payne, Asst. U. S. Atty., of Pierre, S. D. (Olaf Eidem, U. S. Atty., of Sioux Falls, S. D., on the brief), for the United States.

Before WALTER H. SANBORN and KENYON, Circuit Judges, and JOHN B. SANBORN, District Judge.

WALTER H. SANBORN, Circuit Judge.

The writ of error in this case presents for consideration alleged errors of law in the trial of an action brought by the United States on a recognizance and bond for $15,- 000 given as bail by B. I. Salinger, Jr., as principal, and the Southern Surety Company, as surety, on March 20, 1923, for the appearance of Salinger, Jr., for trial on an indictment against him at the District Court of the United States for the District of South Dakota on the first Tuesday of April, 1923, at 10:30 o'clock in the forenoon of that day, and on such other days as said court might direct, and to obey its orders. Salinger, Jr., made default in appearance and in compliance with the terms of the bond, upon notice to him and the surety company of the hearing of a motion by counsel of the United States for a forfeiture of the bond at a time and place specified, to wit, on April 4, 1923, argument on such motion was heard by the court below, and upon consideration it entered an order and judgment of forfeiture of the bond and undertaking.

In its complaint in the case now in hand the government alleged these and other facts and prayed for judgment against the surety company for the amount of the bond, interest, and costs. The surety company answered, the parties waived a jury, the court tried the case, made a clear and comprehensive finding of the facts, stated its conclusions of law, and rendered a judgment against the surety company for $15,000, interest, and costs on September 15, 1924.

On the 21st day of March, 1925, the defendant surety company filed a bill of exceptions, which had been signed by the trial judge on March 20, 1925. On April 11, 1925, counsel for the surety company filed an assignment of 77 alleged errors in the trial of this case and prayed for a writ of error, and this prayer was granted by the court below on April 16, 1925. He filed a printed brief of his argument in 17 divisions, in each of which he presented and argued an objection to the validity of the judgment, and he argued this case orally in this court. For convenience the chief position urged in each of the 17 divisions of his principal brief will be called his objection to the judgment.

His first objection was that the United States District Court of South Dakota had no jurisdiction to try Salinger, Jr., under the indictment against him in that court, because the indictment was found by the grand jury of that court in the Western division of its district, and it charged that the offense was committed in the Southern division of its district, where it has since been tried. But an indictment may be lawfully found by a grand jury in one division of a United States District Court for an offense committed in another division of that court. Ex parte Salinger (C. C. A.) 288 F. 752, 755; Moffat v. U. S. (C. C. A.) 232 F. 522. In Salinger v. Loisel, 265 U. S. 224, 235, 44 S. Ct. 519, 523 (68 L. Ed. 989), the Supreme Court said relative to this issue:

"South Dakota constitutes a single judicial district, with one District Court; but the district is divided into four divisions, where sessions are held at times fixed by law; such sessions, whether in one division or another, being `successive terms of one and the same court.' Hollister v. U. S. C. C. A. 145 F. 773, 782."

In that case, after argument and deliberate consideration, the Supreme Court decided that the District Court of South Dakota had jurisdiction to try the offense charged in the indictment referred to in these proceedings in the Southern division of its district, where the offense was alleged to have been committed, notwithstanding the fact that the indictment was found by the grand jury and returned to the court while it was in session in the Western division of the district. 265 U. S. 224, 232, 237, 44 S. Ct. 519, 68 L. Ed. 989.

The second and third objections to the judgment are that the indictment referred to in the bond was defective, insufficient, and failed to charge any offense against the United States. But the condition of the bond was not that its obligation should be void if the indictment was bad or defective, but that it should be void if Salinger, Jr., appeared for trial at the time and place specified in the bond and complied with its other terms. Salinger did not appear for trial at the time and place specified, and the court on notice adjudged the recognizance and bond forfeited. The position here taken by counsel for the defendant is untenable, because (1) the defects or invalidity of the indictment constitutes no defense to an action against the surety on a bond adjudged forfeited for the failure of the principal to appear for trial or to comply with other terms of the bond, Hardy v. U. S. (C. C. A.) 71 F. 158, 159; U. S. v. Graner (C. C.) 155 F. 679, 680, 681; and (2) in our opinion the indictment referred to was not fatally defective but was sufficient, Salinger v. U. S., 272 U. S. 542, 547, 47 S. Ct. 173, 71 L. Ed. 398.

The fourth objection to the judgment is that the court below committed an error of law in holding that the failure of Salinger, Jr., to appear for trial at the District Court for the District of South Dakota at the city of Sioux Falls in said district on the third day of April, which was the first day of the April term of that court, at 10:30 o'clock in the forenoon, upon an indictment filed in said District Court, in the Southern Division, warranted that court on notice and hearing in rendering its judgment of forfeiture of the recognizance and bond in suit on the 4th day of April, 1923. His argument is that because counsel for the government agreed with counsel of the codefendants of Salinger, Jr., that their clients need not attend the court until the government's counsel could find out when he could secure the attendance of Salinger and try the case, because there could not have been any trial before the bond was forfeited on the 4th day of April, 1923, because no jury was present prior to or on that day, and because the government had made its subpœnas for witnesses returnable on the 10th and 12 of April, the bond did not require Salinger, Jr., to appear until some other time during the term when the case might be called for trial. To our minds this argument is neither convincing nor persuasive. The bond was a written contract between the United States and the surety company. There is no ambiguity in the terms or uncertainty about the meaning or extent of this contract. No discussion or argument can make more clear or certain than the bond itself that the agreement of the surety company and the United States was that, if Salinger, Jr., appeared for trial in the District Court where the indictment was filed on the 3d day of April, 1923, the opening day of the term, and not on some other day, or at some other place, and complied with the other conditions of the bond, and on those conditions only, the bond should be void, and otherwise it should be of force and binding. The contentions of counsel here in our opinion are conclusively answered by the settled and familiar rule that, "where the parties have deliberately put their engagements into writing in such terms as to import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed that the whole engagement of the parties, and the manner and extent of their undertaking, was reduced to writing." Thompson v. Libby, 34 Minn. 374, 377, 26 N. W. 1, 3; Seitz v. Brewers' Refrigerating Co., 141 U. S. 510, 511; Cold Blast Transp. Co. v. Kansas City Bolt & Nut Co. (C. C. A.) 114 F. 77, 81, 57 L. R. A. 696; Union Selling Co. v. Jones (C. C. A.) 128 F. 672, 675; Silver King Coalition Mines Co. v. Silver King C. M. Co. (C. C. A.) 204 F. 166, 172, Ann. Cas. 1918B, 571.

The fifth and sixth objections challenge the findings of fact of the court below with reference to the motion for and judgment of forfeiture of the bond on April 4, 1923, and the attendance of Salinger, Jr., during the April, 1923, term of the court. They read in this way: Objection 5, "Issue having been joined on the material question whether the marshal had called the principal in the bond, the court erred in holding, without support in the evidence, that this call had been made;" objection 6, "The court erred in holding, without support in the evidence, that Salinger was not in attendance at any time during the April, 1923, term of the court, the one designated in the bond."

In each of these objections the words "without support in the evidence" appear, but whether this means without any competent evidence in support of the finding, or without sufficient evidence in a conflict of evidence to support the finding, is not rendered certain. If the former, they charge errors of law; if the latter, they charge errors in fact. If the former, they are not reviewable in this court:

First, because the findings of the court below raise the legal presumption that there was competent and relevant evidence in support of them, in the absence of a certificate by the trial judge that the bill of exceptions contains all the evidence, or all the evidence on the particular issues, the findings concerning which are questioned,...