Auer v. Costa, 7242.
| Decision Date | 11 April 1938 |
| Docket Number | No. 7242.,7242. |
| Parties | AUER v. COSTA et al. |
| Court | U.S. District Court — District of Massachusetts |
Sahagen & Hadge, of Boston, Mass., for plaintiff.
Antonio De J. Cardozo, of Boston, Mass., for defendant.
This is an action against the Portuguese consul at Boston, in which funds in the First National Bank of Boston have been trusteed. Two motions were marked for a hearing. The first, entitled "Motion to Discharge Attachment," is filed on behalf of the defendant, and alleges that the funds attached by the plaintiff do not belong to the defendant but to the republic of Portugal. The second entitled "Application for the Discharge of the Attachment," is made by the Minister Plenipotentiary of Portugal, and also states that the funds belong to the republic of Portugal.
Massachusetts General Laws (Ter. Ed.) c. 246, § 33, furnishes a method of relief for adverse claimants to funds attached by trustee process. There it is provided:
While consuls of foreign countries are not entitled to the immunity from suit accorded to ambassadors and ministers by U.S.C., title 22, § 252, 22 U.S.C.A. § 252, and by international law (see United States v. Tarcuanu, D.C.S.D.N.Y., 1935, 10 F.Supp. 445; United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890), the property of a foreign government is exempt from seizure or attachment in domestic courts (Oliver American Trading Company v. Mexico, 2 Cir., 5 F.2d 659; Mason v. Intercolonial Railway of Canada, 197 Mass. 349, 83 N.E. 876, 16 L.R.A.,N.S., 276, 125 Am.St.Rep. 371, 14 Ann.Cas. 574). Basing my conclusion on the affidavits on file and oral testimony, including that of the defendant, I find that the attached deposit is made up of money belonging to the republic of Portugal. While the account stands in the defendant's name and he may draw upon it with the consent of his government, the account is not his...
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