United States v. Rudner

2 Ohio Law. Abs. 242

• Court: District Court, N.D. Ohio
• Decided: July 1, 1923
• Docket: No. 11847
• Status: Published

Opinion

WESTENHAVER, D. J.

Epitomized Opinion

Published Only in Ohio Law Abstract

This was an action for $20,000 upon a bail bond given by Ben Rudner, with two other defendant sureties, on allowances of writ of error. Rudner was found guilty of criminal conspiracy on July 1, 1921. On July 19th he was fined and sentenced. A petition in error was then filed and the court issued an order that Rudner would be admitted to bail upon furnishing of a $20,000 bond within two days after the date of the order, conditional upon the fact that he would obey the judgment of the United States Circuit Court of Appeals and that he would surrender himself to the U. S. Marshall if the judgment was against him, and pay all fines and costs assessed against him. The order also provided “in default of such recognizance within the time specified, said defendant be remanded into the custody of the U. S. Marshall.” The bond furnished contained different conditions, to wit, that the sureties were to be liable if Rudner failed to appear, and were also to be liable if he failed to pay the costs1 assessed against him. As the judgment of the U. S. Circuit Court was against Rudner, and he defaulted, this action was brought on the bond. The de--fendants claimed that the sureties were only obliged to pay such costs as might be assessed, and that they were not obliged to pay the fine. The court held:

Attorneys — A. E. Bernsteen, for U. S.; Car-hart & Warner, for Rudner et al, all of Cleveland.

1. The court’s order to exact a supersedeas and stay bond was not followed, but that instead an appearance or bail bond and a cost bond, such only as is required when the writ was not to operate as a supersedeas and stay, were in fact exacted and executed. This no doubt was due to inadvertence, but that inadvertence cannot be corrected by construction to the prejudice of the sureties. Therefore, the sureties are not liable for the amount of the fine, but only for the costs.