Applegate v. Applegate, 155.

• Decision Date: 04 August 1941
• Docket Number: No. 155.,155.
• Citation: 39 F. Supp. 887
• Court: U.S. District Court — Eastern District of Virginia
• Parties: APPLEGATE v. APPLEGATE et al.

39 F. Supp. 887

APPLEGATE v. APPLEGATE et al.

No. 155.

District Court, E. D. Virginia, Norfolk Division.

August 4, 1941.

Richard B. Washington, of Washington, D. C., and Earl W. White, of Norfolk, Va., for plaintiff.

H. M. Woodward, of Norfolk, Va., for defendant Applegate.

Sterling Hutcheson, U. S. Atty., of Richmond, Va., and Russell Bradford, Asst. U. S. Atty., of Norfolk, Va., for defendant Johnson.

WYCHE, District Judge.

This is an action by Rosann Applegate against Franklin Tyler Applegate, and R. H. Johnson, as United States Navy Disbursing Officer, praying for an injunction and the appointment of a sequestrator for the purpose of collecting unpaid alimony under a divorce decree of the District Court of the United States for the District of Columbia. It is before me upon motion of the defendants to dismiss upon the following grounds: (1) The Court has no jurisdiction; (2) The fund in question is in the hands of the United States and is not subject to garnishee process; (3) There is no judgment or decree of this Court on which supplementary proceedings can be predicated; (4) The Court has no power to issue garnishee process on the judgment or decree of the District Court for the District of Columbia; (5) This is not a proper case for sequestration since the plaintiff has no lien on, claim to or interest in the fund in question; (6) The plaintiff's petition states no claim upon which the relief prayed for can be granted. The defendant, R. H. Johnson, as Disbursing Officer, United States Navy Yard, moves for dismissal upon the following additional grounds: (a) As an individual, he is not indebted to the defendant Applegate and his dealings with that defendant are solely in his official capacity, as Disbursing Officer for the United States; (b) This action is in effect an action against the United States involving a matter on which the United States has never consented to being sued.

The plaintiff is the divorced wife of the defendant Applegate. In October, 1936, she was granted an absolute divorce and awarded alimony at the rate of one hundred, twenty-five ($125) dollars, per month, by the District Court of the United States for the District of Columbia. It is claimed that the defendant has not fully paid this alimony and now owes the plaintiff the sum of one thousand, twenty-five ($1,025) dollars. That is the amount in controversy. The plaintiff is now a citizen of Pennsylvania. The defendant, Applegate, is a Lieutenant Commander, United States Navy, retired, and is now a citizen of Virginia, residing in this District. As such retired officer, he receives pay from the United States. This is paid him by checks drawn on the United States Treasury by the defendant, R. H. Johnson, Captain, United States Navy, and who is Disbursing Officer for the United States at Norfolk. These checks are drawn by Johnson and delivered to Applegate semimonthly. The plaintiff is seeking to subject the defendant Applegate's pay to the satisfaction of her claim.

Upon these facts, the plaintiff seeks the appointment of a sequestrator to take charge of any property or funds belonging to or becoming due to the defendant Applegate, particularly the amounts paid him by the United States through Disbursing Officer Johnson. She asks that Johnson as Disbursing Officer of the United States Navy be enjoined from delivering further checks or funds to Applegate until her claim is satisfied, and that Johnson be directed to deliver the same to the sequestrator, and that he be authorized to cash such checks and, subject to the order of the Court, apply the proceeds toward the payment of her claim.

While the first additional ground assigned by Johnson may go somewhat beyond the record, it was freely conceded during the argument that no claim was being asserted that Johnson as an individual owed the defendant Applegate any money or had any property belonging to that defendant in his possession. The sole purpose of the action is to reach Applegate's retired pay from the United States, which he receives through Johnson as Navy Paymaster.

The first question raised by the motions is that of jurisdiction. The plaintiff and defendant Applegate are citizens of different States, but the amount in controversy is only one thousand, twenty-five ($1,025) dollars, less than the jurisdictional amount. 28 U.S.C.A. § 41(1). The State of which Johnson is a citizen is not set out, but assuming that he is not a citizen of Pennsylvania, where the plaintiff resides, there is diversity of citizenship, but lack of jurisdictional amount. Federal Courts are courts of limited jurisdiction. With the exception of the Supreme Court, they have no jurisdiction beyond that granted them by the Congress. Generally, the jurisdiction of the District Courts is fixed by 28 U.S.C.A. § 41. This action does not come within any of the provisions of that statute. Nor has the plaintiff been able to point out any other Federal statute under which this Court has been granted jurisdiction in a matter of this kind. Every complainant must, in order to maintain his action, point to some constitutional statute granting this Court jurisdiction to hear his case. The plaintiff here has pointed to no statute under which this action may be maintained.

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