Universal Transp. Co., Inc. v. National Surety Co.

• Decision Date: 01 June 1918
• Citation: 252 F. 293
• Parties: UNIVERSAL TRANSP. CO., Inc., v. NATIONAL SURETY CO.
• Court: U.S. District Court — Southern District of New York

252 F. 293

UNIVERSAL TRANSP. CO., Inc., v. NATIONAL SURETY CO.

United States District Court, S.D. New York.

June, 1918

J Parker Kirlin, John M. Woolsey, and L. de Grove Potter, all of New York City, for the motion.

T Langland Thompson and James S. Darcy, both of New York City opposed.

MAYER District Judge.

This is an application for a writ of scire facias by plaintiff against the surety company.

Plaintiff heretofore recovered in this court a money judgment at law against a steamship company known as Rederiaktiebolaget Amie. The Amie and the surety company executed a bond or undertaking, and the Amie sued out a writ of error. The judgment was thereafter modified and affirmed, and the plaintiff, having failed to collect the judgment against defendant, has moved for a writ of scire facias to issue against the surety on the bond requiring it to show cause why it 'ought not to have execution against it, the said National Surety Company, for the amount due to the plaintiff for its damages and costs under the judgment aforesaid. ' The surety company, by plea or answer, alleges, inter alia as matter of law, that the court is without jurisdiction to proceed against it in this summary manner.

The question now under consideration is solely that of jurisdiction. The grounds on which the jurisdiction of the court is challenged are: (1) That the writ is obsolete in New York; (2) that such a proceeding is the commencement of a new action, which must fail because of lack of diversity of citizenship; and (3) that the present action is, in any event, merely the continuation of the original action at law, and hence (a) because the surety company was not a party to the original action it cannot be proceeded against, and (b) there is no rule of court which permits or recognizes the writ, and therefore the cause must proceed in accordance with the law and practice of New York.

1. While the writ has disappeared from the New York practice, it is specially preserved by the Judicial Code, which, in section 262, provides:

'The Supreme Court and the District Courts shall have power to issue writs of scire facias * * * and the District Court shall have power to issue all writs not specifically provided for by statute, and which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law. ' Act March 3, 1911, c. 231, 36 Stat. 1162 (Comp. St. 1916, Sec. 1239).

The foregoing provision plainly means that the writ may be availed of in any jurisdiction, even though the state in which the federal forum is situated has abolished the writ. The reason doubtless is that Congress regarded it as necessary to revive judgments or to recover upon recognizance or bonds that the litigant should not be compelled to resort to the state courts, but could find and pursue his remedy in the court where the judgment was had. The writ is in the nature of an ancillary arm.

2. Writs of scire facias are of two kinds:

(1) The continuation of a previous action such as a scire facias to revive a judgment and to have execution on it. Collin Co. National Bank v. Hughes, 155 F. 389, 83 C.C.A. 661; Grantland v.

Memphis (C.C.) 12 F. 287; Wonderly v. Lafayette Co. (C.C.) 77 F. 665; King v. Davis (C.C.) 137 F. 198; Davis v. Davis, 174 F. 786, 98 C.C.A. 494; Owens v. Henry, 161 U.S. 642, 16 Sup.Ct. 693, 40 L.Ed. 837; Brown v. Wygant, 163 U.S. 618, 16 Sup.Ct. 1159, 41 L.Ed. 284; Browne v. Chavez, 189 U.S. 68, 21 Sup.Ct. 514, 45 L.Ed. 752.

(2) A scire facias which is in the nature of a new suit, such as a writ to review that which has happened, to recover upon recognizance or bail bond, etc. Insley v. United States, 150 U.S. 512, 14 Sup.Ct. 158, 37 L.Ed. 1163; Hollister v. United States, 145 F. 773, 76 C.C.A. 337; United States v. Ambrose (C.C.) 7 Fed. 554; Kirk v. United States (C.C.) 131 F. 331; Id., 137 F. 753, 70 C.C.A. 187; Id., 204 F. 688; United States v. Taylor (D.C.) 157 F. 718; 35 Cyc. 1145; Foster's Federal Practice, 1248; Hughes' Federal Procedure, 297.

In the case of Washburn v. Pullman Palace Car Co. (C.C.) 66 F. 790, 76 F. 1005, 21 C.C.A. 598, it was held that a writ of scire facias would lie to enforce the liability for costs on a judgment of the federal court against the indorser of a writ, who, under Massachusetts practice, occupies the position of surety on a cost bond. In Bozman v. Armistead, 4 N.C. 616, it was held that a scire facias would lie upon an injunction bond, it being made part of the record by statute. In Egan v. Chicago & Great Western Railway (C.C.) 163 F. 344, where a motion was made by the plaintiff for judgment against the surety upon a supersedeas bond under a state statute, Reed, District Judge, said at page 350:

'This proceeding is analogous to that of scire facias, a judicial writ at common law to revive judgments or to obtain satisfaction thereof, from sureties upon bail or other recognizances taken in the proceedings in which the judgment is rendered. 3 Black. Com., 416-422; Owens v. Henry, 161 U.S. 642-645, 16 Sup.Ct. 693, 40 L.Ed. 837; Pullman's Palace Car Co. v. Washburn (C.C.) 66 F. 790; McGee v. Barber, 14 Pick. (Mass.) 212.'

It has also been held in the following cases that a scire facias is a proper process to obtain execution for costs against the indorser of an original writ. Reid v. Blaney, 2 Greenl. (2 Me.) 128; McGee v. Barber, 14 Pick. (31 Mass.) 212; Ruggles v. Ives, 6 Mass. 494; Miller v. Washburn, 11 Mass. 411; Merrill v. Walker, 24 Me. 237; Newson's Administrator v. Ran, 18 Ohio, 240.

A scire facias is a judicial writ used to enforce execution of some matter of record on which it is usually founded; but, though a judicial writ or writ of execution, it is so far original that the defendant may plead to it. As it disclosed the facts on which it is founded, and requires an answer from the defendant, it is in the nature of a declaration and the plea is properly to the writ. Winder v. Caldwell, 14 How. 434, 14 L.Ed. 487; Dickson v. Wilkinson, 3 How. 57, 11 L.Ed. 491; Hunt v. United States, 61 F. 795, 10 C.C.A. 74; 35 Cyc. 1149; Hughes' Federal Procedure, 298, 299.

A suit on a recognizance or bond is an original proceeding. Davis v. Packard, 7 Pet. 276, 8 L.Ed. 864; Winder v. Caldwell, supra; United States v. Payne, 147 U.S. 687, 13 Sup.Ct. 442, 37 L.Ed. 332.

From the foregoing it appears that the writ is original only in the sense that once obtained the resultant procedure is the same as any action at law entitling a defendant to answer and to a jury trial. The extent or limitations of the subject-matter which may be litigated at the trial need not now be considered.

3. (a) The fact that the surety was not a party to the original action is immaterial. The very nature and purpose of the writ are inter alia to reach the surety who obviously is not a party to the original suit.

(b) Common law rule VI of this court provides:

'In all cases not provided for by the rules of this court causes at common law shall proceed as nearly as may be in accordance with the law for the time being of the state of New York and the practice thereunder of the Supreme Court of said state.'

This rule was enacted in accordance with the Conformity Act, to point out procedure in such cases as were otherwise not provided for by special rules wherein procedure peculiar to the United States courts have been adopted or followed, as, for instance, rule 3, which provides for the service of process in the first instance by the marshal.

Clearly, in the absence of a rule, a common-law writ will proceed in accordance with the settled practice at common law. That procedure is interestingly described in a memorandum of the clerk in Kinney v. Plymouth Rock Squab Co. (District of Massachusetts, No. 107, Law), a copy of which will be filed with this memorandum for the information of those who may have occasion hereafter to resort to the writ.

The rare use of the writ in this jurisdiction has been due probably to the few instances where the surety has resisted payment of his undertaking and probably partly to the unfamiliarity of New York practitioners with its use and efficacy. It is but fair to the surety company to state that it refuses to pay because of notice of certain defenses urged by its indemnitors in protection of their rights, as they understand them.

The conclusion is that the court has jurisdiction to issue the writ and the matter may proceed in due and orderly course.

NOTE.

The memorandum of James S. Allen, clerk, in Robert D. Kinney v. Plymouth Rock Squab Company, referred to above, is as follows:

Authorities Submitted on the Question of the Issuance of a Writ of Scire Facias.

The question is whether the clerk has authority to issue a writ of scire facias to revive a judgment, as of course and as of right, without special order of the court.

Judicial Code, Sec. 262: 'The Supreme Court and the District Courts shall have power to issue writs of scire facias * * * and the District Courts shall have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law.'

Judicial Code, Sec. 9: 'Any District Judge may, upon reasonable notice to the parties, make, direct, and award, at chambers or in the clerk's office, and in vacation as well as in term, all such process, commissions, orders, rules, and other proceedings, whenever the same are not grantable of course, according to the rules and practice of the court. ' Comp. St. 1916, Sec. 976.

I. Court Rule or Order.

We have not been able to find any rule or order of this court authorizing the clerk to issue the writ of scire facias as of right, or as of course. It should be...