HOSTETTER v. SYMES, District Judge, 10 F.2d 109

VAN VALKENBURGH, Circuit Judge. The above-named petitioner has filed a motion for leave to file his petition for writ of mandamus requiring the respondent to allow a writ of error from this court to the District Court for the District of Colorado. The proposed petition is filed with the motion. It appears that on the- 18th day of April, 1925, two indictments were returned against petitioner and one Clifford R.

Obermeyer; one charging the unlawful transportation of a stolen automobile from the state of Colorado to the state of Illinois, and the second indictment charging a conspiracy to commit this substantive offense. The eases were assigned to be tried at Denver, Colo., and were numbered respectively 5052 and 5054 on the docket of said court. That court ordered that the two .cases be tried together, and on May 15, 1925, the trial resulted in conviction, which was followed on the same day by judgment and sentence.

Thereafter, on the 13th day of July, 1925, petitioner lodged with the clerk of the district court at Denver, Colo., a petition for writ of error, with assignment of errors and brief in support thereof. The writ was refused; the reason for such refusal, as appears from the correspondence filed in connection with the application for writ of mandamus, being the failure to file bond for costs as a prerequisite to the issuance of the writ.

The petition for writ of error, accompanied by assignments of error, was thus lodged with the clerk of the court and brought to the attention of the trial judge within 60 days from the date the judgment was entered. The general rule, now well established, is that the allowance of a writ of error from Circuit Courts of Appeals to District Courts in a criminal ease, not capital, is a matter of right where the essential requirements of law have been complied with. In re Claasen, 140 U. S. 200, 11 S. Ct. 735, 35 L. Ed. 409; Hudson v. Parker, 156 U. S. 277, 15 S. Ct. 450, 39 L. Ed. 424; M’Knight v. United States (C.

C. A. 6th Circuit) 113 F. 451, 51 C. C. A. 285; Hardesty et al. v. United States (C. C. A. 6th Circuit) 184 F. 269, 106 C. C. A. 411; Application of Sorini et al. (C. C. A. 9th Circuit) 4 F.(2d) 802. So far as we are now advised from the showing made by the petitioner, the sole ground of refusal was his failure to file a cost bond, ultimately fixed at $250. The filing of a cost bond is not an essential to appellate jurisdiction. Brown v. McConnell, 124 U. S. 489, 8 S. Ct. 559, 31 L. Ed. 495; Kingsbury v. Buckner, 134 U. S. 650, 10 S. Ct. 638, 33 L. Ed. 1047; Davidson v. Lanier, 4 Wall. 447-454,18 L.

Ed. 377; Seymour v. Freer, 5 Wall. 822, 18 L. Ed. 564. The court will not, because of such omission, dismiss the writ except on failure later to comply with such terms as it may impose. Opportunity will be given a plaintiff in error to comply therewith. In the Claasen Case, above cited, the sections of the statute relating to the taking of security, to wit, Rev. St. §§ 1000 and 1007 (Comp. St. §§ 1660, 1666), were considered and construed. That court said: “By

section 1000 of the Revised Statutes, it is provided that every justice or judge signing a citation on any writ of error shall take security for the prosecution of the writ, and for costs, where the writ is not to be a supersedeas and stay of execution, and for damages and costs where it is to be. In a criminal ease, there are no damages; and in such a case, the United States being a party, it is provided by subdivision 4 of rule 24 of this court, that in eases where the United States are a party no costs shall be allowed in this court for or against the United States.” And in Hudson v.

Parker, supra, the court, in approving the rule announced in the Claasen Case, held that: “The only 'proper security,’ then, in a criminal ease, is security for the appearance of a prisoner admitted to bail.” See, also, M’Knight v. United States; Hardesty et al. v. United States; Application of Sorini et al., above cited. It has accordingly been held that the right to a writ of error upon proper application exists without the giving of security. Of course, enlargement upon bail is an entirely different matter.

It is undoubtedly true that a writ, though allowed, must be duly filed in the court which rendered the judgment in order to confer jurisdiction upon this court. Title Guaranty Co. v. General Electric Co. 222 U. S. 401, 32 S. Ct. 168, 56 L. Ed. 248; General Motors Acceptance Corporation v. Lawrence, 9 F.(2d) 64, decided by this court at this term. But the jurisdiction of this court is not in issue. The petitioner seeks to lay the proper foundation for that jurisdiction. Upon the face of the record before us he has done all that was required to entitle him to the allowance of his writ.

His application was duly filed within 60 days from the date of the judgment which he attacks. The writ was denied apparently upon an insufficient ground. No course was left open to him other than to apply to this court, as he has done at its first sitting. The application has been heard upon ex parte-presentation, and this opinion is based upon the showing made by the petitioner without traverse by the respondent.

Our conclusion is that the motion to allow the petition for writ of mandamus to be filed should be sustained, and that the respondent should have 15 days from the date of notice of this ruling from the clerk of this court within which to file his response thereto. It is so ordered.