United States ex rel. Beal v. Cox

14 App. D.C. 368, 1899 U.S. App. LEXIS 3565

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 8, 1899
• Docket: No. 62
• Status: Published

Opinion

Mr. Justice Shepard

delivered the opinion of the Court:

1. Any party to an action or suit, originally instituted in the Supreme Court of the District of Columbia, who has been aggrieved by any final order, judgment, or decree therein, has the right to appeal to this court upon compliance with the rules regulating the exercise of the right, that have been prescribed in accordance with the authority of the Act of Congress creating the Court of Appeals. “The question upon such an application is not, what will be gained by an appeal, but whether the party asking it can appeal at all.” Ex parte Jordan, 94 U. S. 248, 251.

Where a party has a clear right to an appeal that has been refused him by the trial court he may resort to the appellate court for a mandamus to compel its enforcement. Ex parte Cutting, 94 U. S. 14, 20. It was said in that case, wherein the writ was refused: “ The office of mandamus is to compel the performance of a plain and positive duty. It is issued upon the application of one who has a clear right to demand such a performance, and who has -no other adequate remedy.”

Now, accepting the facts stated in the return as absolutely true: Was it the plain and positive duty of the respondent to approve and permit to be filed, the bond, -when offered on December 13, 1898? By the provisions of Bule 10 of this court one of the justices of the Supreme Court of the District of Columbia must approve the bond before the appeal can be perfected. 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.

Such objections ought to be discountenanced. The right of appeal is a valuable one, and its exercise ought not to be obstructed save upon substantial grounds relating to the observance of the necessary steps provided therefor, and the proper protection of the rights of the appellee. The bond is not required to be executed in the presence of the justice who may be called upon to approve it; nor is any form of attestation required. Principals and sureties may be wholly unknown to him, and, as in this case, a principal may reside in a distant State. At the same time, he ought to have the power at his discretion to enquire into the genuineness of the signatures to the bond as well as of the sufficiency of the surety.

When satisfied of the sufficiency of the surety, and there is nothing to cast a reasonable doubt upon the genuineness of the signatures of either principal or surety, the bond offered by counsel ought to be approved without requiring affirmative proof of the act of execution. And this seems to be the prevailing practice. But if there be such doubt raised by facts and circumstances observed by or made known to the justice, it yrould be his duty, as well as his right to make inquiry; and action fotmded upon such inquiry would involve an exercise of discretion that could not be controlled by mandamus.

We can not agree with the contention of the relators that, notwithstanding a reasonable doubt may be raised in respect of the execution of the bond, it is the duty of the justice, nevertheless, to approve the bond unless the fact of its forgery shall have been affirmatively shown. In one of the cases cited by relators upon another point, it is said: “If there is doubt as to the genuineness of the signatures, he (the justice) may no doubt require proof that the bond was actually signéd by the persons whose names appear thereon.” State v. Clark, 24 Neb. 318, 320. There would seem to be no other logical conclusion. One presenting a bond for acceptance affirms its genuineness, and when that is questioned ought to be required to establish it.

As we have said before, if there be nothing in the surrounding circumstances to cast doubt upon its execution, the justice ought not to require proof of genuineness upon the mere suggestion of the opposing party. ' Under such circumstances it would be the duty of the opposing party to make some substantial showing to justify a harassing investigation. But, having performed this .duty, it would be most unreasonable to compel him to assume the burden of disproving the genuineness of'the signatures.

The question, whether, even if the bond was not signed by Burton, the protection of the appellee would be complete, because the surety would be bound by his own signature and act of delivery, need not be considered. Whether he would be estopped to impeach the genuineness of the principal’s signature, and to deny his own liability, in an action upon the bond, is wholly irrelevant. There could be, no excuse, much less" justification, for the acceptance and approval of any bond, a single signature to which may be believed to be spurious.

When, therefore, in this case the justice expressed his doubt of the genuineness of the Burton signature, it became the duty of the appellants to prove it; and they were entitled to an opportunity to make such proof. Had they made a demand for such opportunity, it would have been the plain duty of the justice to give them a reasonable time to produce the proof, and to indicate some reasonable manner in which it might be presented. If satisfied upon such hearing of the genuineness of the sigiiature, a positive duty would arise to approve the bond nunc pro tunc.

If such application be denied a hearing would be compelled by mandamus.

As shown by the return, no such application was made in this case when the approval of the bond was refused on December 13, 1898, on the ground that the respondent “ did not believe that the bond bore the genuine signature of Ulysses R. Burton.”

2. The next step was the second offer of the bond for approval on January 23, 1899, when the time within which the appeal bond could be given, under the rules, had expired.

The proof of Burton’s signature then consisted of his letter with the endorsement of Daniels thereon.

It is said in the return that the signature to this letter is totally unlike the signature to the bond, and that if it had been necessary to decide the fact at that time, respondent would have held the statement in the letter to be untrue. The reason for not then entertaining the question of the execution of the bond is thus stated: “I consider this motion as equivalent to an offer of a new bond after the period allowed therefor had expired, and did not think I had any power to accept it even if it were a good bond.”

Considering the bond as if then presented for approval, it came too late. The relators contend that the bond was “filed,” within the meaning of Rule 10, when presented to the justice for approval on December 13, 1898, and that the formal approval could be endorsed at any time thereafter.

It is true, that, in the first instance, the appellant’s duty is performed when he offers the bond for approval. If not then rejected, a formal approval made later would relate back to the former date, for the party’s right could not be destroyed by the mere delay of the justice. The clerk can not be required to receive and file the bond as a part of the proceedings in the cause, until it shall have been approved by the justice. We have indicated above how the time may be saved in case of refusal to approve on account of doubt in respect of the execution of the bond by any one of the parties thereto. When the justice refuses to approve the bond for any reason, it can not be considered as “filed,” or any longer before him. The only recourse then, is to apply for time to prove the genuineness of the bond, or to re-offer it, or a substitute bond, within the time limited by the rule.

Under the facts as disclosed by the return, we think that the respondent did not err in refusing to consider the bond when offered the second time, because his power to approve an appeal bond in the case had ceased with the expiration of the time allowed in the rule.

Not. having been convinced that it was the plain and positive duty of the respondent to approve the bond when offered, either upon December 13, 1898, or upon January 23,1899, the rule to show cause must be discharged and the petition dismissed, at the relator’s costs. It is so ordered.

Dismissed.