Dillon v. United States

• Decision Date: 12 November 1928
• Docket Number: 5587.,No. 5586,5586
• Citation: 29 F.2d 246
• Parties: DILLON v. UNITED STATES. SMITH v. SAME.
• Court: U.S. Court of Appeals — Ninth Circuit

29 F.2d 246 (1928)

DILLON v. UNITED STATES.

SMITH v. SAME.

Nos. 5586, 5587.

Circuit Court of Appeals, Ninth Circuit.

November 12, 1928.

Dennis J. Lucey and Franklyn M. O'Brien, both of San Francisco, Cal., for appellants.

Geo. J. Hatfield, U. S. Atty., and Esther B. Phillips, Asst. U. S. Atty., both of San Francisco, Cal.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

DIETRICH, Circuit Judge.

In point of fact and legal status the two cases are substantially identical, and for the sake of brevity we shall therefore refer only to the first.

On August 5, 1924, the appellant filed his complaint under the Sealing Claims Act of June 7, 1924, 43 Stat. 595 (28 USCA § 52). Whitelaw v. United States (D. C.) 9 F.(2d) 103; United States v. Laflin (C. C. A.) 24 F. (2d) 683; Bird v. United States (C. C. A.) 24 F.(2d) 933. The customary deposit was made for costs, and summons issued. The clerk's records disclose no other proceeding until January 11, 1926, when, acting under its standing rule 76, the court entered an order of dismissal, whereupon the clerk, as is his practice, computed costs earned, and returned the balance of the deposit to counsel for plaintiff. Nothing further occurred until May 6, 1928, when plaintiff filed an application, supported by an affidavit and accompanied with the written consent of the United States district attorney, that the order of dismissal be vacated. Upon a hearing the application was denied, and plaintiff brought this appeal.

In addition to the facts already referred to, the affidavit supporting the application shows: That upon the filing of the complaint service was made upon the United States district attorney at San Francisco, and a copy (presumably of the complaint) was mailed to the Attorney General. That on September 1, 1924, counsel for plaintiff received a letter from an assistant to the Attorney General, then stationed at San Francisco, explaining that in such cases it required an indefinite length of time to get the records from Washington, and that therefore the writer was inclosing a stipulation on the subject of time in which defendant should appear and plead. The stipulation inclosed bore the signatures of the district attorney and the special assistant, and was to the effect that the defendant United States might have 10 days "after the receipt of written notice within which to except, answer, or otherwise plead." This counsel for plaintiff signed, but by common consent it was not filed. Shortly thereafter counsel for plaintiff had a conference with Mr. Maythan, the special assistant, in the course of which he inquired of him concerning the attitude of the government in respect to the sealing cases, and was informed that it was the intention to bring to trial three of those then pending, and, upon obtaining decision, the government would be in a position to decide what steps to take, if any, in disposing of the claims. That it was then agreed that it would not be necessary for plaintiff "to take any other action in the premises, and that in due time the government would advise" his attorney as to the course it would pursue in respect of pending cases, and whether they would be tried or otherwise disposed of. That plaintiff assented, and did not take any further steps in this suit, awaiting a determination of cases in the court and notice from the United States district attorney's office. That on or about February 27, 1928, counsel for plaintiff learned from a San Francisco newspaper that the Circuit Court of Appeals had sustained the judgment of the District Court in the Laflin Case, supra, and thereupon, on consulting his files and...