157 F. 718 | W.D. Ark. | 1907
On the 19th of October, 1894, in a criminal case pending in this court against Osmer Surplis a forfeiture was rendered against Albert Taylor, who was surety upon the bond of said Surplis, and a sci. fa. was issued against the said Taylor, requiring him to appear and show cause why said forfeiture should not be made final. On the 18th of March, 1897, judgment of forfeiture was made final against the said Albert Taylor. On the face of the judgment it is recited that due service had been had upon the said Albert Taylor. On November 21, 1907, the said Albert Taylor filed in this court a motion to vacate the judgment, on the ground that he never had been served with any process, and therefore the court had no jurisdiction to render judgment against him, and that, if the sci. fa. had been served upon him, he would have made a full and complete defense thereto, and said judgment would not have 'been rendered against him. He accompanies his motion with an answer which he offers to file to the bond, in which he admits that, when he executed the bond as surety of Osmer Surplis, that the said Osmer Surplis did not appear in response to said bond, because he died before said forfeiture occurred, and before the return day fixed in said bond for his appearance; that, knowing of the death of said Surplis, after the bond was forfeited he came to Ft. Smith, and brought witnesses -to prove the death of said Surplis, and they appeared before the United States district attorney and made sworn statements of the death of said Surplis before the forfeiture wTas made final, and that he left with the understanding that the forfeiture should be set aside, and that subsequently he heard nothing of the matter until the month of February, 1907. To this motion the United States interposed a demurrer, and the motion was argued before the court, and taken under advisement.
No authority is necessary to show that a judgment without notice is a nullity, and absolutely void, and it seems from the case of Harris v. Hardeman, 14 How. 334, 14 L. Ed. 414, that where, upon the inspection of the whole record in a case, it affirmatively appears that the court rendering judgment had no jurisdiction of the defendant, that it may be on motion set aside. In the case at bar, however, as already stated, the judgment itself recites the notice. The sci. fa. is not produced, and appears to be lost. In its absence the inspection of the whole record affirmatively shows that service was had upon the surety, Albert Taylor, and the court, therefore, had jurisdiction of the defendant. Having jurisdiction of the subject-matter and of the defendant, the case of Harris v. Hardeman is inapplicable. Where the record affirmatively shows service and the judgment debtor desires to assail the truthfulness of the return of the officer, or the recital of service in the judgment, the remedy, it would seem, is by bill for an injunction. See Earle et al. v. McVeigh, 91 U. S. 503, 23 L. Ed. 398; Wingfield v. McLure et al., 48 Ark. 510, 3 S. W. 439; Fuller v.
“Títere is no doubt that a récognizance is in tbe nature of a judgment confessed of record (State v. Abrens, 12 Rich. Law [S. C.] 493), and that the sci. fa., by its own language, is to confirm it.”
I conclude that the motion will not lie, that the demurrer should be sustained, and the motion itself denied, to which the defendant Taylor may note his exception.