United States v. Abeel

• Decision Date: 04 October 1909
• Docket Number: 1,823.
• Citation: 174 F. 12
• Parties: UNITED STATES v. ABEEL et al. [1]
• Court: U.S. Court of Appeals — Fifth Circuit

174 F. 12

UNITED STATES v. ABEEL et al. ^[1]

No. 1,823.

United States Court of Appeals, Fifth Circuit.

October 4, 1909

The following is the petition of the plaintiff, filed in the Circuit Court:

'To the Honorable Judges of Said Court:

'Your petitioners, the United States of America, hereinafter called plaintiffs, by their district attorney for the Northern District of Texas, William H. Atwell, after having obtained leave of the court, file this, their first amended original petition, in lieu of their original petition filed herein on the sixteenth day of October, 1907, and for such amendment complain of Alfred Abeel, Mrs. Fannie Finks, a feme sole, and the Fidelity &amp Deposit Company of Maryland, all of whom are hereinafter styled defendants, and represent:

'(1) That Alfred Abeel is an inhabitant, resident and citizen of the county of McLennan, state of Texas. That Mrs. Fannie Finks is the widow of John H. Finks, deceased, and is the executrix of the said John H. Finks' estate, and resides in and is a citizen and inhabitant of the county of Dallas, state of Texas; that the Fidelity & Deposit Company of Maryland is and was at the time of the happening of the matters hereinafter detailed, a corporation organized and existing under and by virtue of the laws of the state of Maryland, for the purpose, among other things, of guaranteeing the fidelity of persons holding positions of public and private trust, and to execute bonds and undertakings for such persons, and at the time of the execution and delivery of the hereinafter mentioned bond and writing obligatory, had complied with the provisions of the laws of the state of Texas authorizing it to do business in said state of Texas, and had complied with the provisions of an act of Congress, approved August 13, 1894, and had been duly granted by the Attorney General of the United States authority as under the laws provided to do business under such act in the state of Texas and in the Northern District thereof, and the said company has and had a local director and agent in the city of Dallas on the dates aforesaid, to wit, Lee E. Burgess.

'(2) That the said Mrs. Fannie Finks was, by the duly probated will of the said John H. Finks, deceased, appointed executrix of the said John H. Finks' estate, and became under the terms of said will, and is now, the owner and holder of all the said property of the said John H. Finks, both real and personal, and that vested in him at the time of his demise.

'(3) That on the thirteenth day of May, 1903, John H. Finks was the duly appointed and acting clerk of the Circuit Court of the United States within and for the Northern District of Texas, and on or about that date was notified and required by the Attorney General of the United States to execute with sufficient sureties, and cause to be delivered to these plaintiffs, a bond to these plaintiffs in the penal sum of fifteen thousand dollars, conditioned among other things that he, the said John H. Finks, should faithfully discharge the duties of his office, and properly account for all moneys coming into his hands, as required by law; and thereupon, to wit, on the thirteenth day of May, 1903, the said John H. Finks, as principal, and the said Alfred Abeel and the said Fidelity & Deposit Company of Maryland, as sureties, did make, execute and deliver to these plaintiffs, pursuant to the laws in such case made and provided, their certain bond and writing obligatory, in words and figures herein, following, to wit:

"Know all men by these presents: That we, John Hollingsworth Finks, of Dallas, Dallas county, Texas, and Alfred Abeel of Waco, in the county of McLennan, are held and firmly bound unto the United States of America, in the sum of fifteen thousand dollars, lawful money of the said United States to be paid to the said United States, for which payment, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Signed with our hands and sealed with our seals this 13th day of May 1903.

"The condition of the above obligation is such,

"Whereas, pursuant to law, John Hollingsworth Finks has been appointed clerk of the Circuit Court of the United States for the Northern District of Texas, to have and to hold the same, with all the rights, privileges and emoluments thereunto lawfully appertaining, as by an appointment to him bearing date the 24th day of April 1889, more fully appears, a certified copy of which is hereunto annexed.

"Now, if the said John Hollingsworth Finks, by himself and by his deputies, shall faithfully discharge the duties of his office and seasonably record the decrees, judgments and determinations of the said court, and properly account for all moneys coming into his hands, as required by law, then this obligation to be void, otherwise, to remain in full force and virtue.

"(L.S.) John Hollingsworth Finks.

"(L.S.) Alfred Abeel.

"(L.S.) Fidelity & Deposit Company of Maryland.

"(L.S.) By Lee E. Burgess, Local Director.'

'Which said bond was duly, to wit, on the first day of June, 1903, approved.

'(4) That the said bond and writing obligatory was executed and delivered as aforesaid for and in consideration of the fact that the said John H. Finks had not, within four years next preceding the said thirteenth day of May, 1903, given any bond to secure the faithful discharge by him of his duties as such clerk aforesaid, and was also executed and delivered to enable the said John H. Finks to comply with the requirement made and notified to the said John H. Finks by the Attorney General of the United States, to wit, that the said John H. Finks give a bond to the plaintiffs conditioned as aforesaid in the penal sum aforesaid, for the purpose of strengthening the security theretofore given by him, the said John H. Finks, for the faithful discharge of his duties as such clerk, and was further executed and delivered for the purpose and in consideration of enabling the said John H. Finks to retain his office and position as such aforesaid clerk.

'(5) That thereafter, on the first day of June, 1903, the said bond and writing obligatory, so executed and delivered to the plaintiffs, was duly presented to and approved, as aforesaid, by the United States Circuit Court for the Northern District of Texas, and recorded at large upon the records thereof.

'(6) That thereafter the said John H. Finks, pursuant to said appointment and under and pursuant to and because of the security afforded by the said bond, and the approval thereof, continued to occupy and fill his said office and position as clerk aforesaid, and receive the emoluments thereof under the law until the fourteenth day of May, 1906, at which time his term was ended.

'(7) That the said John H. Finks was appointed clerk of the Circuit Court of the United States for the Northern District of Texas on the twenty-fourth day of April, 1889, in all things due and regular, and continued to serve under the law as such clerk from the date of said appointment until the fourteenth day of May, 1906.

'(8) The plaintiffs allege that the said John H. Finks did not faithfully discharge all the duties of his said office of clerk of the Circuit Court of the United States in and for the Northern District of Texas, and for assigning a breach thereof, and of the condition of the said bond and writing obligatory, the plaintiffs allege that after his appointment as clerk of said Circuit Court, and at divers times between the said twenty-fourth day of April, 1889, and the said fourteenth day of May, 1906, and between the thirteenth day of May, 1903, and the said fourteenth day of May, 1906, upon and during all of which dates the said John H. Finks was in office, as aforesaid, filling and occupying the position of clerk of the United States Circuit Court, as aforesaid, a large amount of money, to wit, $26,675.04, came into the hands of the said John H. Finks in his official capacity as such clerk, and not otherwise, that is to say, by virtue and under the authority of the rules and regulations of the Circuit Court of the United States for the said District, which said rules and regulations were made by the presiding judge and judges of the said Circuit Court under and by virtue of the power and authority in them vested as such courts and judges through and by the statutes and acts of Congress of the United States, which said rules are hereto annexed and made a part of this petition, rule 8 thereof being specially pleaded, which was in the following words, to wit:

''The clerk and marshal shall keep in their respective offices the statutes of the United States. All moneys collected for costs shall be collected upon a taxation showing the items taxed. Neither the clerk nor marshal shall be required to perform any service for the parties to any cause until satisfactory security to the clerk and marshal respectively shall be given in such sums as will cover the costs in the case, or an amount sufficient to cover the expense of the required service shall have been deposited; provided, if at any time any service shall be required of the marshal which shall require the expenditure of moneys by him to properly perform it, then the marshal may require a deposit of such sum as will be sufficient to meet the required outlay. Nothing in this rule is to be taken as depriving any party of any rights he may have under the existing practice to protect himself against his adversary in the matter of costs,' and the aforesaid sum of money was collected by him as such clerk and placed in his official possession and custody to be by him as such clerk safely kept under the rules as aforesaid until the same was earned, disbursed or otherwise accounted for by him,

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