170 F. 941 | 2d Cir. | 1909
The previous litigation iu this court related to the bond given by John E. Gaynor with William B. Kirk as surety. The facts in the case at bar, so far as they relate to the proceedings in Georgia, are in all respects substantially similar to those in the Kirk Case, except that they relate to the bond given by Benjamin D. Greene with James D. Deary (the defendant’s intestate) as surety,
The defendant argues that the proceedings in the District Court of Georgia were illegal for the reason that the recognizance was not in ■ the form required by statute and was not properly estreated. We deem it unnecessary to consider this contention' further than to say that, after a careful consideration of the facts upon which defendant’s argument is based, we decided, in the Kirk Case, that the recognizance was properly estreated and that the United States acquired a perfect cause of action thereon.
It is argued that the action is founded upon a judgment alleged to have been entered in the Georgia court upon scire facias proceedings instituted thereon, which judgment has no extraterritorial effect and cannot, therefore, be enforced in the Southern district of New York.
In order to test the question, let it be conceded that the complaint contains unnecessary allegations and that the cause of action would have been established by the simple proof that the bond was duly estreated; how is the defendant injured? If a new trial were granted and the alleged redundant allegations and proof were stricken out the same result must inevitably follow, because on the undisputed relevant facts the plaintiff is entitled to a verdict. It has a cause of action upon the recognizance and, with all allusion to the scire facias proceedings stricken from the record, it will still be entitled to a verdict.
We have examined the other assignments of error and think none is well taken.
The judgment is affirmed.
