United States v. Diamond

• Decision Date: 01 June 1931
• Citation: 50 F.2d 263
• Parties: UNITED STATES v. DIAMOND et al.
• Court: U.S. District Court — Southern District of New York

50 F.2d 263 (1931)

UNITED STATES v. DIAMOND et al.

District Court, S. D. New York.

June 1, 1931.

George Z. Medalie, U. S. Atty., of New York City (Ernest Lappano, of New York City, of counsel), for the United States.

Walter & Wolff, of New York City (Alfred A. Walter, of New York City, of counsel), for defendant surety.

WOOLSEY, District Judge.

The motion for judgment on the pleadings is denied, but the lesser relief is granted of striking out the alleged separate defenses.

This is a motion by the United States for judgment on the pleadings in a scire facias proceeding against the surety on an undertaking in the sum of $15,000 for the defendant John Diamond to appear before Garrett W. Cotter, Esq., one of the United States commissioners, appointed by this court, on an information charging defendant Diamond with violation of the Harrison Narcotic Act (26 USCA §§ 211, 691-707).

On the question of jurisdiction and procedure 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 value.

I. On such a motion as this in a scire facias, I think it clear that the court may look not only at the pleadings but at any other papers in the case on file as part of the records of the clerk of this court, or its commissioners, for of such papers this Court may take judicial notice.

But even on a scire facias, to which the defenses necessarily and properly must be few, the court may not gratuitously assume the truth of challenged returns of its officers or decide questions raised as to the actual service of notices or process.

II. Here the writ alleges, in paragraph 3, that the defendant Diamond was duly and solemnly called before Garrett W. Cotter, Esq., United States commissioner for this district, on September 10, 1929, and in paragraph 4, that the defendant Diamond made default in his said demanded appearance and that the undertaking, which is the subject-matter of the writ, was thereupon declared by Commissioner Cotter to be forfeited.

These allegations which underlie the writ are denied by the surety company defendant.

On these denials it is entitled to have a trial. Hollister v. United States, 145 F. 773, at page 781.

III. The separate defenses pleaded by the surety company are, however, stricken out, for they do not, as pleaded, constitute defenses of which the surety may avail itself.

The fact that, for some inscrutable reason, the undertaking given was stated to be for appearance before Commissioner Cotter, mentioned in the first alleged defense, is the only defense which has any plausibility but that is shown to be without avail under the persuasive reasoning of the opinion of the Circuit Court of Appeals for the Eighth Circuit in Hollister v. United States, 145 F. 773, at page 781, in which Adams, Circuit Judge, said:

"It is next contended that there was no breach of the recognizance stated in the declaration. The recognizance required Waugh to appear before the court `at the next term * * * to be held in the court room in the federal building at Sioux Falls, South Dakota, to wit, on Tuesday, October 18, 1904, and from time to time at said term and all subsequent terms of said court when required by the order of said court * * * to answer,' etc. It is averred that on October 18, 1904, the case was duly called for trial, both sides appearing, when it was ordered by the court to be set down for trial at the November term, 1904, of the court to be held at Aberdeen, S. D., and that Waugh appear at that time and place for trial. It is averred that Waugh failed to appear at Aberdeen according to the order made, and that as a result thereof the recognizance was forfeited. The contention is that the failure to appear at Aberdeen constituted no breach of defendants' undertaking. Is this correct? By the provisions of the act of November 3, 1893 (chapter 10, 28 Stat. 5), the state of...