United States v. Sulvani

• Court: U.S. District Court — Western District of New York
• Writing for the Court: KNIGHT
• Citation: United States v. Sulvani, 4 F.Supp. 775 (W.D. N.Y. 1933)
• Decision Date: 28 September 1933
• Parties: UNITED STATES v. SULVANI et al.

4 F. Supp. 775

UNITED STATES v. SULVANI et al.

District Court, W. D. New York.

September 28, 1933.

Richard H. Templeton, U. S. Atty., and Willard R. Chamberlin, Asst. U. S. Atty., both of Buffalo, N. Y Alexander Taylor, of Buffalo, N. Y., for surety Joseph Andrasek.

KNIGHT, District Judge.

The facts are:

On July 28, 1929, an indictment was returned against John Sulvani, alias John Sullivan, and others. Joseph Andrasek and others became sureties on the bond of defendant given for the appearance of the defendant to answer the charge laid in the indictment. On January 21, 1930, the indictment was moved for trial, and Sulvani failed to appear.

Joseph Andrasek and other sureties on the bond aforesaid had due notice to appear on January 21, 1930, and produce the defendant for arraignment and trial. An order was then made estreating the bond.

On March 31, 1933, a writ of scire facias was issued, to which the said bondsmen have not answered. On June 26, 1933, the indictment was nolle prossed by order of this court.

Two questions are to be answered here: (1) Whether the nolle prosse affects the right of the government to proceed on the scire facias; and (2) if the right to proceed by scire facias is not affected by dismissing the indictment, whether the court may, in its discretion, remit the whole or a part of the penalty of the bond.

As to the first question, the answer is found in these decisions of the courts. United States v. American Bonding Co. of Baltimore (C. C. A.) 39 F.(2d) 428; United States v. Kelleher et al. (C. C. A.) 57 F.(2d) 684, 84 A. L. R. 414, and cases cited. Upon the authority of these cases, the surety is not entitled to dismissal of the writ of scire...