Bundy v. United States ex rel. Darling

25 App. D.C. 459, 1905 U.S. App. LEXIS 5300

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 2, 1905
• Docket: No. 1487
• Status: Published

Opinion

Mr. Chief Justice Shepard

delivered the opinion of the Court:

This is an appeal from an order of tbe supreme court of tbe District, awarding a writ of mandamus to compel tbe appellant, Charles S. Bundy, as a justice of tbe peace, to approve an appeal bond.

Tbe following facts appear from tbe petition and return: In a case pending before tbe appellant, as justice of tbe peace, between Ebud N. Darling and William Stone Abert, tbe same being a trial of tbe right of property, tbe said justice, on July 21, 1901, rendered judgment in favor of Abert, from which Darling entered notice of appeal. On said day Darling served notice upon Abert that be bad entered an appeal and would, on July 21, offer the Title Guaranty & Trust Company as surety upon bis appeal bond. * On said date Darling appeared in perTbe following facts appear from tbe petition and return: In a case pending before tbe appellant, as justice of tbe peace, between Ebud N. Darling and William Stone Abert, tbe same being a trial of tbe right of property, tbe said justice, on July 21, 1901, rendered judgment in favor of Abert, from which Darling entered notice of appeal. On said day Darling served notice upon Abert that be bad entered an appeal and would, on July 21, offer the Title Guaranty & Trust Company as surety upon bis appeal bond.

* On said date Darling appeared in per-

We are of the opinion that it was the plain duty of the justice of the peace, under the circumstances, to approve the bond that had been tendered. United States ex rel. Beal v. Cox, 14 App. D. C. 368, 373. In that case it was said: “If the bond appear to be regular in form and execution, and the surety sufficient, it is his duty to approve it without regard to captious objections that may be raised on behalf of an opposing party.” This being the case, it was clearly within the power and became the duty of the supreme court of the District in the exercise of its appellate jurisdiction in the premises to compel the approval of the hond. Church v. United States, 13 App. D. C. 264, 266.

The bond was tendered within the six days prescribed by section 31 of the Code, and it is not necessary therefore to consider whether, in eases of the trial of the right of property in a justice’s court, this time is extended to six days after prayer for appeal entered, by the terms of section 35.,

Nor, as the notice was given in the time prescribed by rule 20, is it necessary to determine whether the supreme court of the District has the authority to make a rule which, if enforced literally, might shorten the time for giving an appeal bond should the appellant be unable to procure the requisite surety before the commencement of the time required for notice of his intention. Probably when a bond shall be tendered on the last day allowed by the Code, the rule as to notice might still operate; in which event, if satisfied with the surety, the justice could enter his approval as of the date of filing, as indicated in United States ex rel. Beal v. Cox, 14 App. D. C. 368, 374.

The question of the power of the court to make a rule that in its necessary operation might shorten the statutory period for tendering appeal bonds in the courts of justices of the peace will not be determined until a case shall come before us which renders it necessary.

The objection that the petition for mandamus could only be prosecuted by the United States attorney for the District has been presented, for the first time, on this hearing. Even if not too late to be now entertained, it is without merit. It has always been the practice to permit the relator in such proceedings to use the name of the United States, as a matter of course, without resort to the intervention of the district attorney; and even that formality is not now considered essential to the maintenance of the action. Dancy v. Clark, 24 App. D. C. 487.

There was no error in granting the writ of mandamus, and the order will be affirmed, with costs. It is so ordered.

Affirmed.

There appears to be some confusion in the record as to the dates, although the petition and return give the dates mentioned in the opinion. It would seem, however, that the true date of the judgment was July 15, 1904; that on the same day an appeal was noted and a notice given that a surety would be offered on July 20, 1904; that proceedings under this notice were abandoned, a new appeal noted and a notice given July 18, 1904, that the surety company mentioned in the opinion would be offered on July 21, 1904. — Reporter.