United States v. Hickman, 8888.

• Decision Date: 11 June 1946
• Docket Number: No. 8888.,8888.
• Citation: 155 F.2d 897
• Parties: UNITED STATES v. HICKMAN et al.
• Court: U.S. Court of Appeals — Seventh Circuit

155 F.2d 897 (1946)

UNITED STATES v. HICKMAN et al.

No. 8888.

Circuit Court of Appeals, Seventh Circuit.

June 11, 1946.

J. Albert Woll, U. S. Atty., and John Peter Lulinski and Kenneth S. Nathan, Asst. U. S. Attys., all of Chicago, Ill., for appellant.

Henry L. Balaban, of Chicago, Ill., for appellee.

Before MAJOR, KERNER, and MINTON, Circuit Judges.

KERNER, Circuit Judge.

Defendants, Hickman as principal and Parker as surety, executed a recognizance bond before a United States Commissioner, conditioned upon the appearance of the principal on April 3, 1945, in connection with a violation of 18 U.S.C.A. § 408e. The recognizance bond contained the usual provisions for judgment by confession in the event of default. Hickman failed to appear. The Commissioner entered an order forfeiting the bond and on April 6, 1945, a judgment was entered against defendants for $2,500, the penalty of the bond and costs. April 18, 1945, Hickman was apprehended by the agents of the Federal Bureau of Investigation at Kansas City, Missouri. April 24, 1945, the surety filed a petition to vacate and set aside the judgment. Plaintiff answered, opposing the granting of the petition on the ground that Hickman's failure to appear was willful. A hearing was had, and the court entered an order vacating and setting aside the judgment. To reverse the order, plaintiff appeals.

The purpose of a recognizance bond is to secure the presence of the defendant and to that obligation the surety knowingly binds himself. By the terms of a recognizance bond the defendant agrees to "appear for judgment," Continental Casualty Co. v. United States, 314 U.S. 527, 530, 62 S.Ct. 393, 86 L.Ed. 426, and if the condition of the bail bond is broken by the failure of the principal to appear, the surety becomes the absolute debtor of the United States for the amount of the penalty. United States v. Mack, 295 U.S. 480, 488, 55 S.Ct. 813, 79 L.Ed. 1559. The Remission of Penalty of Recognizance Statute, 18 U.S.C.A. § 601, restricts the power of courts to relieve a defaulting defendant from the penalty of a bond which has been breached, and controls the circumstances under which the court may remit a recognizance bond. It provides that the court may, in its discretion, remit the whole or any part of a penalty whenever it appears "there has been no willful default of the party." Under this statute, jurisdiction to grant remission is conditioned upon certain prerequisites, the first of which is the showing of no willful default on the part of the principal in the bond. United States v. Capua, 7 Cir., 94 F.2d 292. Remission, however, is not a matter of right and the court's discretion is not unlimited. United States v. Reed, 5 Cir., 117 F.2d 808. The burden is not upon the plaintiff to show that the default was willful, but upon the defendant to...