Roberts v. Consaul

24 App. D.C. 551 | D.C. Cir. | 1905

Mr. Chief Justice Shepard

delivered the opinion of the Court:

1. We will first consider the question whether the contract sought to be enforced is in violation of secs. 3737, 3477, U. S. Rev. Stat. (Comp. Stat. 1901, pp. 2507 and 2320). Those sections were enacted for the protection of the United States, and not of persons having claims against them. “They were passed in order that the government might not be harrassed by multiplying the number of persons with whom it had to deal, and might always know with whom it was dealing until the contract was completed and a settlement made.” Hobbs v. McLean, 111 U. S. 567, 576, 29 L. ed. 940, 943, 6 Sup. Ct. Rep. 870. And, as was said in that case, they “simply forbid the assignment of such claims before their allowance, the ascertainment of the amount due thereon, and the issue of a warrant for their payment.” In the cases relied on in support of the appellant’s contention (United States v. Gillis, 95 U. S. 407, 24 L. ed. 503; Spofford v. Kirk, 97 U. S. 484, 24 L. ed. 1032; Hager v. Swayne, 149 U. S. 242, 37 L. ed. 719, 13 Sup. Ct. Rep. 841; Ball v. Halsell, 161 U. S. 72, 40 L. ed. 622, 16 Sup. Ct. Rep. 554, and others), there were express assignments of a whole or a part of the claims; and in some of them the assignees undertook the prosecution in their own names.

The original contract here involved that was made with Campbell’s administrator, and, as charged in the bill, adopted by Holland and others when the suit was instituted in their names, brings the case within the doctrine enounced in Hobbs v. McLean, 117 U. S. 567, 576, 29 L. ed. 940, 943, 6 Sup. Ct. Rep. 870, and makes it analogous to Sanborn v. Maxwell, 18 App. D. C. 245, 253, in which that doctrine, as apprehended by us, was applied, although the facts in neither case are identical with those here presented. No more than in those cases does this contract, as we understand its pxirpose and effect, assign or transfer to the plaintiffs’ intestate any part of a claim against the United States, or any right to demand payment from them by suit or otherwise. By it they merely retained Mnyers as their attorney to prosecute the claim against the United States in the court of claims on their behalf and in their names, agreeing to pay him one half of the amount that might be collected, in consideration of the services to be performed by him. Any intention to assign him an interest in the claim itself is also negatived by the stipulation that the fee agreed upon should be a lien upon the draft when issued in payment. None of the evils which the statutes were intended to prevent could arise from such an agreement. Persons having claims against the United States that must be collected through proceedings in the court of claims are practically compelled, in the majority of cases, to employ attorneys and contract with them for fees contingent upon success. Such contracts are not unlawful, and may be enforced according to their terms where fair and reasonable. Taylor v. Bemiss, 110 U. S. 42, 45, 28 L. ed. 64, 65, 3 Sup. Ct. Rep. 441.

Such contracts not being otherwise opposed, to public policy, it would be an unreasonable construction of statutes intended solely for the protection of the United States to extend them thereto. In our opinion they are neither within the letter nor the spirit of the sections referred to, where they fall short of an actual assignment of a specific interest in the claim itself.

2. The next question is, whether the court had jurisdiction of the subject-matter of the suit.

The services of the attorney, as contracted for, were performed and the consideration therefor earned when the judgment was recovered. All that remained for him to do, if permitted, was to receive the draft for the appropriation made by Congress for the payment of the judgment.

The contract being a lawful one and providing that the stipulated fee for the services of plaintiffs’ intestate should be paid out of the amount to be collected, and should constitute a lien upon the draft to be issued in payment thereof, he had a lien upon the fund enforceable in equity. Sanborn v. Maxwell, 18 App. D. C. 245, 252, and cases there cited. One having such a lien, as well as one who acquires a lien through a creditor’s bill, may obtain from a court of equity having jurisdiction of the subject-matter and the parties such orders as may be proper and necessary to prevent the claimant of the fund subject thereto from withdrawing it from the reach of either. Price v. Forrest, 173 U. S. 410, 423, 43 L. ed. 749, 753, 19 Sup. Ct. Rep. 434; Sanborn v. Maxwell, 18 App. D. C. 245, 253.

But it is contended that the court has no jurisdiction in this case because the fund, being a debt due from the government of the United States, has no locality in the District of Columbia. This is undoubtedly true as a general proposition, for the reason that, as said by the Supreme Court of the United States, “The United States, in their sovereign capacity, have no particular place of domicil, but possess, in contemplation of law, an ubiquity throughout the Union;” and hence “the debts due by them are not to be treated like the debts of a private debtor, which constitute local assets in his own domicil.” Vaughan v. Northup, 15 Pet. 1, 10 L. ed. 639. See also United States use of Mackey v. Coxe, 18 How. 100, 15 L. ed. 299; Wyman v. Halstead (Wyman v. United States) 109 U. S. 654, 27 L. ed. 1068, 3 Sup. Ct. Rep. 417; United States v. Borcherling, 185 U. S. 223, 233, 46 L. ed. 884, 889, 22 Sup. Ct. Rep. 607.

The conditions of this ease are unlike those in so far as the appellant is now concerned. As between him and the appellees the fund has a locality in the District of Columbia. By the authority of those cases he would be protected by the receipt of the receiver appointed in the decree appealed from. That decree, it must be remembered, does not command the appellant to surrender the draft or pay over the money in the Treasury that has been appropriated by Congress for the payment of Holland, but simply authorizes the receiver to demand and receive the same.

The final question of jurisdiction of the fund can only be raised by the defendant Holland, who is alleged to be a resident of California, and who, not having been brought before the court by process, is not concluded by the decree. Until he shall have been made a party, it will not be proper to issue an order commanding the appellant to deliver up the fund. If when made a party by proper process, Holland shall not object to the jurisdiction on the ground of his nonresidence, there will be an end of the question. If, when so brought into the case, he does make the objection in a proper manner and at the proper time, the question will have to be determined. Until then it will not be proper to intimate an opinion in respect of it.

In view of the restricted nature of the order as entered, it is not perfectly clear that the appellant had the right to take this appeal; but the point has not been suggested,.and it is not of sufficient importance to raise and determine it of our own motion. The existence of a possible doubt in this regard has been mentioned in order that, by entertaining the appeal under the circumstances, we shall not be understood as expressly affirming the absolute right thereof from all orders of the kind.

We may add, also, that it would be a better practice in such cases to wait upon service of process on the claimant, and the entry, thereafter, of a decree commanding the delivery of the fund. With all the parties before the court every question involved could be finally determined.

3. Assuming, as we must for the purposes of the present appeal, that the court below had jurisdiction of the subject-matter, we have no doubt of its jurisdiction to control the action of the appellant, notwithstanding his official capacity, in respect of the payment of the fund. The suit is in no sense against the United States. The money having been appropriated and directed to be paid to the claimant, they have no interest in the controversy. By the act of appropriation the appellant, as Treasurer of the United States, is charged with the plain, ministerial duty of making immediate payment upon the demand of the person specified therein. If unrestrained by the order of a court having jurisdiction in the premises, he should refuse to make'the payment to the claimant a court of law would compel him to do so by writ of mandamus. Roberts v. United States, 13 App. D. C. 38, 46, 176 U. S. 221, 231, 44 L. ed. 443, 447, 20 Sup. Ct. Rep. 376. For the same reason a court of equity, having jurisdiction to appoint a receiver of the fund and to control its disposition," may compel its delivery through a mandatory writ of injunction.

Finding no error in the decree appealed from, it will be affirmed with costs; and it is so ordered. Affirmed.