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fendant after the United States Court had taken jurisdiction and after it was alleged by the amended complaint that they had no interest whatever in the cause, their failure to appear and answer was an admission of the truth of the allegation relating to their lack of interest. So, without extending the discussion farther, we hold that there was jurisdiction in the circuit court, and that the case is properly before this court.

Error is assigned because the court refused to give an instruction requested by the defendant to the effect that it was not sufficient for the jury to find that the locomotive was not safe, but it must also be found that the defendant failed to use reasonable care in providing the locomotive for use of the deceased; that defendant is not an insurer of the safety of its employés, but has performed its legal duty if it exercised reasonable care to provide a safe locomotive for the use of the deceased. As the propositions included in the requested instruction were explained and embraced in the charge which the court gave, it was not necessary to repeat them in special instructions asked by either party. Rio Grande Western Railway v. Leak, 163 U. S. 280, 16 Sup. Ct. 1020, 41 L. Ed. 160.

Defendant asks a reversal because the court told the jury that there was no proof of contributory negligence and that they need not. consider that defense. It is unnecessary to state the testimony; but, after a careful reading of it, we are satisfied that the court was justified in its ruling, for the reason that there was not enough evidence from which contributory negligence could have been reasonably inferred. Under the pleadings and instructions, whether or not the boiler of the locomotive burst because of low water, combined with a defective boiler, was immaterial so far as the deceased conductor was concerned, less, when he was riding in the cab at the time of the explosion, he knew, or ought to have known, that there was not enough water in the boiler to make the locomotive safe to remain upon. But there was no direct or circumstantial evidence which warranted any reasonable inference that deceased knew or ought to have known of any such possible condition of the water. The fact that he had his hand on the top of the gauge cock, steadying or amusing himself just before the explosion of the boiler, was not sufficient, of itself, to prove negligence, unless there were other facts or circumstances which, when taken in connection with such conduct or position, tended to show lack of ordinary care on his part which directly contributed to his death. There were none such; hence the case became one where the court properly held, as a matter of law, that defendant had failed to sustain its allegations of contributory negligence, and properly told the jury to confine their deliberations to a consideration of the evidence in support of the issues submitted to them.

Judgment affirmed.

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UNITED STATES V. JENKINS et al.

(Circuit Court of Appeals, Fourth Circuit. November 4, 1909.)

No. 887.

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BAIL ($ 79*) — REMISSION OF PENALTY ON FORFEITED RECOGNIZANCE-FEDERAL

STATUTE-POWER OF COURT.

An application to a federal court which has entered judgment on a for. feited recognizance in favor of the United States, for a remission of the penalty for which such judgment was rendered under Rev. St. § 1020 (U. S. Comp. St. 1901, p. 719), which gives the court power to remit the whole or any part of such penalty "when it appears to the court that there was no willful default of the party," is not a motion to vacate the judgment, and niay be entertained after the term at which the judgment was entered.

(Ed. Note.-For other cases, see Bail, Cent. Dig. 8 352; Dec. Dig. $ 79.*)

McDowell, District Judge, dissenting. In Error to the District Court of the United States for the Western District of North Carolina, at Asheville,

Application by Walter Jenkins and J. E. Shuler for the remission of the penalty of a forfeited recognizance. From a judgment granting such relief, the United States brings error. Affirmed.

At the May term, 1894, of the United States District Court, at Asheville, judgment final was entered upon a forfeited recognizance in favor of the United States and against the defendants in the sum of $200. Execution was issued on the judgment in 1895 and returned nulla bona, and no other execu. tion was issued until October 28, 1908, when execution was issued and placed in the hands of the United States marshal of this district for collection. The marshal was threatening to levy on and sell the lands of the defendants, when the defendants filed an affidavit in the cause, at the May term, 1908, of the District Court of the United States for the Western District of North Carolina, and entered a motion praying for an order restraining the marshal from proceeding further with the cxecution then in his hands and for the cancellation of said judgment.

The following are the facts upon which the court based its judgment: J. E. Shuler, who was surety for Walker Jenkins, filed an affidavit, in which he stated: “That the defendant Walker Jenkins was under bond for his personal appearance at the November term, 1894, of the United States District Court, at Asheville, and this affiant was his surety; that this affiant is advised, informed and believes that the said Walker Jenkins was sick at the November term, 1894, and unable to attend said term of the court, and that he was called out, and judgment nisi taken against the saia Walker Jenkins and J. E. Shuler, his surety, in the sum of $200; that the defendant Walker Jenkins appeared at the next term of the court, it being the May term, 1895, and was tried and found not guilty and was ordered discharged; that affiant is advisel, informed, and believes that after the said defendant Walker Jenkins had been discharged and told to go home, the judgment nisi was called up, and final judgment entered on the sci. fa. against said Walker Jenkins and this affiant; that this affiant never knew that judgment had been entered against the said Walker Jenkins until a few weeks ago, when the United States deputy marshal of this district informed attiant that execution had been issued on said judgment and that he had the same in his hands for cola lection, and he is now threatening to collect the same.”

A. E. Holton, U. S. Atty. (A, L. Coble, Asst. U. S. Atty., on the brief), for the United States.

Thomas S. Rollins (Moore & Rollins, on the brief), for defendants in error. •For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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Before PRITCHARD, Circuit Judge, and WADDILL and McDOWELL, District Judges.

PRITCHARD, Circuit Judge (after stating the facts as above). It is contended by counsel for defendant in error that the court below had the right to set aside the judgment rendered in this case, and the brief filed by counsel is in support of such contention. In assuming this position, we think that counsel for defendant in error failed to consider the provisions of section 1020, Rev. St. (U. S. Comp. St. 1901, p. 719). The rule in the federal court is that a motion to vacate or set aside a judgment must be made before the expiration of the term at which the judgment is rendered. Even if the court below had adopted the practice of the state courts in that respect, it did not have the power to vacate the judgment, inasmuch as under the practice in the state courts of North Carolina, such motion must be made within one year from the date of the rendition of the judgment. However, we do not think that this case comes within that class of cases wherein the remedy is by motion to vacate a judgment. Section 1020, Rev. St. (Federal Statutes Annotated), to which we have referred, reads as follows:

"When any recognizance in a criminal cause, taken for, or in, or returnable to, any court of the United States, is forfeited by a breach of the condition thereof, such court may, in its discretion, remit the whole or a part of the penalty, whenever it appears to the court that there has been no willful de fault of the party, and that a trial can, notwithstanding, be had in the cause, and that public justice does not otherwise require the same peṇalty to be enforced."

Thus it will be seen that this section gives the court the power, under certain circumstances, to remit the whole or a part of the penalty for which judgment may be rendered on a forfeited recognizance. This statute was enacted on the 28th day of February, 1839, and was evidently intended as a remedy for a surety in a case where there is no willful default of the party and where a trial of the cause can be or has been had. Before the enactment of this statute, Chief Justice Marshall had this question before him in the case of United States v. Feely, Fed. Cas. No. 15,082, but in that case the application was before the recognizance was estreated, and was, therefore, before judgment. However, the reasoning of that distinguished jurist shows that the court has the power before, as well as after, judgment to remit a penalty based upon a forfeited recognizance.

In note 3, p. 724, American and English Encyclopedia of Law (2d Ed.), in referring to the foregoing case, it is said:

"In U. S. v. Feely, 1 Brock. 255 [Fed. Cas. No. 15,082), Chief Justice Marshall, after a full discussion of the authorities, shows that the Court of Oyer and Terminer in England had, independent of any statute, the power to refuse to estreat recognizances which it had adjudged forfeite, and might remit the same whenever the circumstances of the case in their discretion justified it. In conclusion, he says: "The authority on which the court most relies is Mr. Blackstone. In his 4th volume, page 254, he says: “A recognizance may be discharged, either by the demise of the King, to wliom the recognizance is made, or by the death of the principal party bound thereby, if not before forfeited, or by the order of the court to which such recognizance is certified by the justices (at the Quarter Sessions, Assizes, or King's Bench) if they see

176 F.-43

sufficient cause.” Upon authority, then, it appears that, entirely independent of the statute, the courts of England exercise the power which this court is now required to exercise.” This discussion of the authorities and the Conclusion have been cited with approval in State v. Clifford, 124 Mo. 492 (28 S. W. 5]; State v. Warren, 17 Tex. 283. See, also, Colt v. Eaton, 1 Root (Conn.) 524; Noll v. State, 38 Neb. 587 [57 N. W. 285]; State v. Traphagen, 45 N. J. Law, 134.”

In the case of United States v. Duncan, 25 Fed. Cas. No. 15,004, McCanless, District Judge, in construing section 1020, Rev. St., among other things, said:

“In the case of Com. v. Denniston, 9 Watts [Pa.] 142, the principle is recognized that a recognizance is a matter of record, and, when forfeited, it is in the nature of a judgment of record, and, when judgment is given, the whole is taken as one record. The right of the Governor, therefore, to remit cannot be affected by proceeding to judgment on the recognizance, as the nature of the recognizance remains the same after as before judgment. This being the case, the act of Congress affords us ample power in the exercise of a sound discretion to afford the relief prayed for. And as we are of opinion that the absence of the principal was no fault of the bail, and that he has done all in his power to repair the public injury by the surrender of the prisoner, he is entitled to the interposition of the court upon payment of the costs.”

‘In that case, a sci. fa. was sued out on the 26th day of October, and served on Duncan the same day. No appearance or plea being entered, judgment nil dicit was entered with the clerk in the sum of $3,000. There is nothing in the record to show precisely when application in that case was made, but there is a headnote which shows that the decision was rendered in 1863. Therefore, it is fair to assume that application for relief was made long after the term of the court at which judgment was entered had expired. In the case of United States v. McGlashen et al. (C. C.) 66 Fed. 537, it was held: “That in an action on a forfeited recognizance, only a legal defense can be heard ; and the fact that there was an appearance or discontinuance after forfeiture is not a legal defense, though it would constitute matter for applica

tion, under Rev. St. § 1020, to the court which adjudged the forfeiture, to have the penalty remitted.”

In that case, the recognizance was forfeited in the District Court of the United States for the District of Kansas, but application for relief was made in the Circuit Court of the United States for the Eastern District of Wisconsin; and that court, therefore, held that it was without power to grant relief. The court said:

“It would constitute matter for an application, under section 1020, Rev. St., to have the penalty remitted, in whole or in part; but that must be addressed to the court which adjudged the forfeiture, and where alone is lodged a discretion to grant relief when it appears that there has been no willful default of the party, and that a trial can, notwithstanding, be had in the cause, and oJolie justice does not otherwise require the same penalty to be enOrced.

This case was carried by writ of error to the Circuit Court of Appeals for the Seventh Circuit, where it was disposed of without passing upon the question as te the power of the court to remit the penalty after the term had expired at which the judgment was rendered.

In the case of United States v. Santos, Fed. Cas. No. 16,222, it

does not appear whether or not the term at which default was made had expired before application for relief was made by the surety; but it is fair to assume that, notwithstanding the default had been estreated, no final judgment had been entered thereon in the Circuit Court. However, it does appear that the defendant in that case answered to the indictment, but left without leave of the court before the trial was concluded. He was called and defaulted, and recognizance was duly estreated for the purpose of being prosecuted. The trial proceeded, inasmuch as he was only charged with a misdemeanor, and resulted in the acquittal of the defendant. Nelson, Circuit Judge of the Southern District of New York, holding a term of the Circuit Court for that district, and before whom this case was heard, said:

"This case is rather stronger in favor of the application than those contemplated in the statute. Here the trial has been had and the prisoner has been acquitted. The condition of the recognizance has been performed in fact, though not in contemplation of the law, for the defendant has stood the trial. The case being a misdemeanor, it was competent to proceed with the trial in his absence. Although it must be assumed that the default was willful, as it respects the prisoner, for aught that appears the bail is innocent, and he is the person most materially interested in the success of the motion. Under the actual circumstances of the case, I think that the breach of the condition of the recognizance is technical, and that it would be unreasonable to impose it. I shall therefore direct the default and estreat to be set aside.”

In the case of United States v. Mercer et al., Fed. Cas. No. 15,758, it appears that judgment was entered in November, 1868, but it does not appear when the application was made. However, the headnote shows that the case was decided December 19, 1868. The court in that case recognized the right of the defendant to make application in pursuance of section 1020; but, in disposing of the matter, held:

*That it appearing to the court that the defendant was guilty of the crime charged, and that the amount forfeited was not commensurate with the punishment deserved, that public justice required that the forfeiture should be enforced."

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In the case of United States v. Winstead and Another (D. C.) 12 Fed. 50, heard by Dick, D. J., it appeared that Winstead, the principal, failed to appear and answer to a criminal prosecution, and a judgment was entered against him as surety on a forfeited recognizance upon which a scire facias was issued to the parties to show cause why execution should not be issued. The surety filed a plea stating that the defendant had died before service of the scire facias, and asked to be discharged from liability as bail. The court, in disposing of this motion, said:

"The entry of judgment nisi in this case at the last term was irregular. State v. Smith, 66 N. C. 620. A judgment nisi is one that is to be valid unless something else should be done within a given time to defeat it. When a witDess is duly summoned to appear at court and fails to do so, a judgment nisi may be entered for the penalty iniposed by law for such default; and upon being served with a scire facias he may show cause at a future day why the judgment nisi shall not be made absolute. If the witness should die before such judgment is made absolute, the proceeding abates and cannot be revived against his personal representative.

"A recognizance duly entered into is a debt of record, and the object of a scire facias is to notify the cognizor to show cause, if any he have, wherefore

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