The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919. Page: 450
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450 256 FEDERAL IMPORTER.
NATIONAL SURETY CO. v. UNIVERSAL TRANSP. CO., Inc.
(Circuit Court of Appeals, SecondCiruit. February 14, 1919.)
,- ,,, i ' No. 168..
1. A1EAL 'AND ERRon 4=794-CiaburT COURT OF APPEALS-MOTION TO DIs-
' MIs on AFFIRM.
Whild infrequent, motions' to' dismiss or affirm are well recognized in
the Circuit Court of Appeals.
2. APPAL AND ERROR C:-12(q-WIT FOR DETAY-AFFIRMANCE.
The defenses, propounded by traverse to scire faclas to obtain execu-
tion, being without merit, and the writ of error taken to overruling there-
.pf appearing to be taken for purposes only of delay, judgment will be
Safnrmed on motion.
In, Error to the District Court of the United States for the Southern
District of New York.
Scire, facias by the Universal Transportation Company, Incorporated,
against the National Surety Company to obtain execution. Judgment
for -execution (252 Fed. 293), and the Surety Company brings error.
Heard on motion to dismiss or affirm. Affirmed.
Kirlin, Woolsey & Hickox, of New York City (John M. Woolsey,
of New York City, of counsel), for the motion.
William J. Griffin, of New York City (T. Langland Thompson and
Jame's S. Darcy, both of New York City, of counsel), opposed.
Before ROGERS, HOUGH, and MANTON, Circuit Judges.
HOUGH, Circuit Judge. this plaintiff in error was surety on a
bond given to secure the demand of the party plaintiff or libelant in
the case which finally reached us as The Ada, 250 Fed. 194, 162 C. C.
A. 330, and Rederiaktiebolaget v. Universal, etc., Co., 250 Fed. 400,
162 C.,C. A. 470. As the result of the decision last' mentioned, judg-
ment fot a very large'sum was duly docketed in favor of the Universal
Company and against the Rederiaktiebolaget.
ExecUttion thereupon having been returned nulla bona, and the above-
named 'surety company, as surety, failing to pay on demand, the ex-
ecutiof pl tintiff (Universal Company) ptocured from the court below,
in whlkh' aid judgment was docketed and where the surety company's
bo4li rd~iaind of record, a writ of scire facias, coinmanding the surety
company to show cause why execution should not issue against it for
the amount of the aforesaid judgment.
The surety company filed a traverse in which it .first denied any
jurisdiction to issue the writ, and then in substance asserttd that, be-
cause Universal Company had not succeeded in all the 'claims it had
advanced against the Rederiaktiebolaget and its steamship Ada, and
had attempted to collect its final judgment, first by ordinary execution,
then through proceedings supplementary thereto, and also by suit
against the surety company and on the bond, in the courts of New
York, and had done all these things before resorting to scire facias,
therefore said Universal Company was "estopped from asserting, claim-
ing, or recovering any amount" from the surety company "by, through,
PFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
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The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919., legislative document, 1919; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38827/m1/464/: accessed April 18, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.