45 App. D.C. 440 | D.C. Cir. | 1916
delivered the opinion of the Court:
Appeal from a decree in the'supreme‘court of the District sustaining appellee’s motion to dismiss appellants’ bill to have declared an equitable lien in $68,072,388.99, which is alleged to be in the United States Treasury, under the custody of appellee, Wm. Gr. McAdoo, Secretary of Treasury.
A motion to dismiss this bill having been granted, leave to amend was obtained. Thereupon an amended bill was filed, in which was omitted the averment as to the source of the above sum.
The bill, even as amended, clearly discloses that this large sum of money is not the property of the appellee at all, but, on the contrary, that he is merely its custodian in virtue of his office. The real defendant, therefore, is the United States. Without pausing to point out other apparent weaknesses in the bill, we may ground our affirmance of the decree below upon the fact that the United States cannot be made a party to this suit without its consent. United States ex rel. Goldberg v. Daniels, 231 U. S. 218, 58 L. ed. 191, 34 Sup. Ct. Rep. 84; International Postal Supply Co. v. Bruce, 194 U. S. 601, 48 L. ed. 1134, 24 Sup. Ct. Rep. 820; Belknap v. Schild, 161 U. S. 10, 40 L. ed. 599, 16 Sup. Ct. Rep. 443.
Decree affirmed, with costs. Affirmed.
An appeal to the Supreme Court of the United States was ' allowed December 16,1916.