United States v. Widen

• Citation: 38 F.2d 517
• Decision Date: 08 March 1930
• Docket Number: No. 19199.,19199.
• Parties: UNITED STATES v. WIDEN et al.
• Court: U.S. District Court — Northern District of Illinois

38 F.2d 517 (1930)

UNITED STATES v. WIDEN et al.

No. 19199.

District Court, N. D. Illinois, E. D.

March 8, 1930.

George E. Q. Johnson, U. S. Atty., and Lyman W. Sherwood, Asst. U. S. Atty., both of Chicago, Ill.

George L. Quilici, of Chicago, Ill., for defendant Widen.

LINDLEY, District Judge.

The defendant Widen, having been indicted, on April 3, 1929, gave bond for his appearance in the sum of $1,500 by executing his written recognizance, which recited that Liberty bonds to the amount of $1,500 had been deposited with the clerk as security for the performance of the bond and that said bonds were made a part of the recognizance. At the same time, the clerk issued to defendant a receipt for the Liberty bonds as bail for himself. Thereafter, on November 26, 1929, the defendant was sentenced to serve thirty days in jail and to pay a fine of $200 and committed to jail until the fine was paid. Execution of the sentence was suspended until November 29th, whereupon defendant surrendered and served his jail sentence.

Thereafter, on January 23, 1930, Greenberg filed in this court his petition setting up that the bonds deposited by defendant are in fact the property of petitioner and asking that the court direct these bonds be surrendered to him.

The government moved to strike the petition, and, by stipulation of the parties, the court heard the evidence under agreement that if the motion to strike should be disallowed then an answer of the government filed on January 27, 1930, and thereafter withdrawn, should be refiled as of the date of the hearing and the case considered upon the issues thus drawn.

It is the law of the federal court in the Seventh Circuit that the bail authorized by Rev. St. § 1014 (18 USCA § 591), is not limited to common-law bail and that the trial court has no discretion to refuse a deposit by the accused in cash of the amount of bail required and to require the giving of a bail with security. Rowan v. Randolph, 268 F. 529 (C. C. A. 7). It is further to be observed that under the recent decision in the case of Detroit Fidelity & Surety Co. v. U. S., 36 F. (2d) 682 (C. C. A. 6), the suspension of execution of a sentence until a definite date is not an alteration of the recognizance releasing the surety and that the bond remains in full force until discharged by satisfaction thereof.

In this situation it is insisted that the criminal law confers upon this court no jurisdiction to consider intervention by a stranger to the record. Greenberg is not a party to the suit. He does not appear upon the court record as a bondsman, but is a stranger who files his intervening petition praying that the court may find that, though these bonds were presented by the defendant and the receipt therefor given to him, the petitioner is in fact the owner thereof and that the clerk holds the same in trust for him and should be ordered to deliver the same to him. To allow this petition would be to exercise a jurisdiction in the nature of an equitable jurisdiction and to determine the alleged beneficiary's rights in and to funds that come into the court only in a criminal cause.

At common law intervention was not recognized. See 20 R. C. L. 683, § 21; 2 Bates on Fed. Proc. § 1042, p. 728. Jurisdiction of intervening petitions came to be recognized only in courts of chancery. No federal statute has been enacted which has modified this common-law rule in the federal courts. In the case of McKemy v. Supreme Lodge A. O. U. W., 180 F. 961, 965, the Court of Appeals for the Sixth Circuit held that persons interested in money deposited with the court in an action at law cannot intervene for their own protection; that the court in such a common-law action has no jurisdiction to inquire into the ownership of and to distribute the funds amongst the various beneficiaries entitled thereto. The court said: "This is a suit at law. We know of no principle which permits parties interested in a fund sought to be recovered in a suit at law to intervene in such suit for their own protection. * * * A court of law cannot distribute the fund amongst the various beneficiaries entitled thereto. * * * The distinction in the courts of the United States between causes of actions at law and in equity is matter of substance and not of form."

Obviously, therefore, Congress not having enlarged the jurisdiction of a court of criminal law to the extent that it may exercise equitable jurisdiction, there is no theory upon which a stranger to the record may intervene in this suit. If petitioner has any remedy, it must be in an appropriate form of action in a plenary suit, such as mandamus, injunction or other remedy. Therefore the motion to strike the petition should be,...