Fireman's Fund Indemnity Co. v. Kennedy
97 F.2d 882
9th Cir.
1938
Check Treatment

MASSACHUSETTS BONDING & INSURANCE COMPANY, a Corporation v. UNITED STATES of America, Harry H. Culver & Company, a Corporation

No. 8707

Circuit Court of Appeals, Ninth Circuit

June 29, 1938

97 F.2d 882

assistants, except when on behalf of the United States, the following fees:

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“For receiving, keeping, and paying out money in pursuance of any statute or order of court, including cash bail or bonds or securities authorized by law to be deposited in lieu of other security, 1 per centum of the amount so received, kept and paid out, or of the face value of such bonds or securities.”

Appellant appeals from the taxation of this item because, it contends, the money was deposited “on behalf of the United States“. There is no merit to this contention. The appellant made no tender to the appellee of the amount it admitted was due prior to the filing of the suit. The suit to recover it and the judgment to be rendered in favor of the United States for the deposited amount was compelled by this failure of appellant. Hence the money must be deemed received and deposited on behalf of the depositor, the appellant. The fact that it will be paid to the United States pursuant to the judgment does not alter the fact that it was handled for appellant‘s account. On the entry of final judgment against appellant in this case the item will properly be included in the costs.

The judgment is reversed and the case is remanded for further proceedings in conformity with this opinion.

Joe Crider, Jr., and Clarence B. Runkle, both of Los Angeles, Cal., for appellant.

James W. Morris, Asst. Atty. Gen., Sewall Key, Norman D. Keller, and E. E. Angevine, Sp. Assts. to Atty. Gen., and Ben Harrison, U. S. Atty., E. H. Mitchell, Asst. U. S. Atty., and Eugene Harpole, Sp. Atty., Bureau of Internal Revenue, all of Los Angeles, Cal.

Before DENMAN, MATHEWS, and HEALY, Circuit Judges.

DENMAN, Circuit Judge.

The parties and issues in this case are identical with those in

, this day decided. Only the years of the deficiencies and the amount of the bond differ. For the reasons stated in the former opinion, the judgment is reversed and the case is remanded to the district court for further proceedings in conformity with that opinion.