Frederick Howard v. United States David Stewart

• Decision Date: 20 January 1902
• Docket Number: No. 121,121
• Citation: 22 S.Ct. 543,184 U.S. 676,46 L.Ed. 754
• Parties: FREDERICK C. HOWARD, James L. Lombard, and John C. Gage, Plffs. in Err. , v. UNITED STATES to Use of DAVID STEWART
• Court: U.S. Supreme Court

184 U.S. 676

22 S.Ct. 543

46 L.Ed. 754

FREDERICK C. HOWARD, James L. Lombard, and John C. Gage, Plffs. in Err.,

v UNITED STATES to Use of DAVID STEWART.

No. 121.

Argued January 20, 1902.

Ordered Submitted to Full Bench January 27, 1902.

Submitted February 24, 1902.

Decided march 24, 1902.

Messrs John C. Gage, Sanford B. Ladd, and Frank Hagerman for plaintiffs in error.

Messrs. Edwin A. Krauthoff, David D. Stewart, J. V. C. Karnes, and Alexander New for defendant in error.

Mr. Justice Harlan delivered the opinion of the court:

Were the appellants entitled, of right, to bring this case here from the circuit court of appeals? Has a clerk of a circuit court of the United States authority to receive money brought into court by a private suitor, and is he responsible upon his bond if he does not deposit it as required by statute and appropriates it to his own use? Is the bond of the clerk for the protection of private suitors, as well as of the United States? Has a private suitor the right, without express statutory authority, to sue on the bond of the clerk in the name of the United States for his benefit?

These questions are presented by the record, and will be examined after we shall have stated the facts set out in the special findings made by the circuit court.

On the 3d day of March, 1887, Warren Watson was duly appointed clerk of the circuit court of the United States for the western division of the western district of Missouri; and on the same day he executed, and the court approved, his bond to the United States in the penalty of $20,000.

He died March 24th, 1892, while acting as clerk, and an administrator of his estate was appointed April 2d, 1892. Notices, as required by the local law, having been previously given for the presentation of claims, the administration of the estate was closed and the administrator discharged on the 11th day of September, 1894. At no time did the United States or the relator, Stewart, exhibit or present any claim against Watson's estate.

Stewart instituted, February 6th, 1891, in the circuit court of the United States, a suit at law against Henry county, Missouri, upon three bonds of the county, two for $1,000 each and one for $500. His petition contained three counts. In the first count he asked for judgment for $1,010, with interest from September 1st, 1887, as the amount due on the first bond of $1,000. The second count was upon the other bond for $1,000; the third, upon the $500 bond.

On the 3d day of March, 1891, the county filed its answer alleging as to the first count that on September 6th [1st], 1887, there was due on the bond therein referred to $1,010, and on that date it had deposited that sum in the National Bank of Commerce of New York for the payment of the bond and interest and tendered the same to the plaintiff as full payment thereof, but that the plaintiff had refused to accept such payment. The answer further alleged that the defendant had 'at all times been ready and willing to pay plaintiff said sum of $1,010 in full payment of said bond and unpaid interest, and now here again tenders to plaintiff said sum of $1,010 in full payment of said bond and unpaid interest due thereon, on September 6th [1st], 1887, and now brings the said sum into court.' The answer to the second and third counts was exactly the same, except that as to the third count the amount named was $505, instead of $1,010.

On the same day, March 3d, 1891, there was entered on the records of the court in said cause the following order: 'This day comes defendant by its attorney and files answer and tenders to the plaintiff and deposits with the clerk the sum of $2,525 in payment and satisfaction of his cause of action in the petition set forth. Thereupon a stipulation waiving a trial by jury is filed herein.'

It was found as a fact that Henry county did hand to Watson the sum of $2,525 as recited in that order.

On June 27th, 1891, Stewart, the plaintiff in that suit, filed a reply, which was a general denial of the facts alleged in the answer.

On July 2d, 1894, more than two years after Watson's death, there was entered on the records of the court in the cause the following: 'This day come the parties by their attorneys, the plaintiff by Karnes, Holmes, & Krauthoff, and the defendant by M. A. Fyke, and a stipulation waiving a jury having been heretofore filed herein, the hearing of this cause is proceeded with before the court. Thereupon evidence is heard and the case is submitted to the court and by the court taken under advisement, with leave to the parties to file briefs.'

On the 11th day of February, 1895, the following order was made in that case: 'A jury having heretofore been waived in writing by the parties hereto, and this cause having been submitted to the court on the pleadings and evidence and argument of counsel, and taken under advisement by the court, and the court being now fully advised in the premises, doth find the issues as follows, to wit: On the first count of the petition the court finds that the principal and interest on bond No. 204 was duly tendered by defendant at the place of payment on the 1st day of September, 1887, and that after the plaintiff instituted this action in this court, and at the filing of the answer herein, the defendant duly paid said sum into court for the use and benefit of plaintiff, and that plaintiff is entitled to judgment therefor on the first count of the petition in the sum of $1,010.' The findings on the other counts differed only as to amounts.

The order in the same case then proceeded: 'It is therefore ordered and adjudged by the court that the plaintiff have judgment for the recovery of the sum of twenty-five hundred and twenty-five dollars ($2,525), the aggregate amount found to be owing to him under the three counts of the petition, and that plaintiff pay the costs of this action, and that execution issue therefor. And it further appearing to the court that the said sum of $2,525, so paid into court as aforesaid, was paid to and received by Warren Watson, the then clerk of this court, who has since departed this life without having accounted for said sum of money so received by him as said clerk, and that said money has never been turned over to his successor in office, the present clerk of this court, nor has the same been otherwise accounted for by said Warren Watson as clerk, or otherwise: It is found and adjudged by the court that the plaintiff is entitled to have and recover said money so received by said Warren Watson as clerk aforesaid, and plaintiff is authorized to proceed therefor on the bond of said Warren Watson given as clerk as aforesaid.'

No appeal was taken from this judgment, and the same became final and remained in full force and effect and unpaid.

No order or direction as to this money was ever made except as indicated in the order of February 11th, 1895.

When the $2,525 was paid by Henry county to Waston, he deposited it the same day in a bank to his individual credit, and it was not at any time treated by him as in the depository of the court. He never presented to the court any account of the money, nor paid it either to Henry county or to Stewart. During the pendency of the Stewart suit against the county neither party took any steps for an order in relation to the money, other than was actually made as above stated, nor made any objection to the method in which the money was received. Stewart, however, had no knowledge of the acts of Watson.

It was further found that no demand was ever made on the defendants or on Watson for the money other than is to be inferred from the institution of the suit.

The present action was brought October 19th, 1895, against the sureties in Watson's bond, in the name of the United States, at the relation and to the use of David D. Stewart. One of the sureties, McDonald, pleaded his discharge in bankruptcy, and that plea was sustained. Judgment was entered against the sureties (except McDonald) for the sum of $2,525, with interest at 6 per cent from the commencement of this suit, making total of $3,057.77. 93 Fed. 719. That judgment was affirmed in the circuit court of appeals. 42 C. C. A. 169, 102 Fed. 77.

1. The first question is one of the jurisdiction of this court. The defendant in error insists that the judgment of the circuit court of appeals was final, and that therefore no writ of error lay to this court.

Is this a correct interpretation of the statutes defining and regulating the jurisdiction of the courts of the United States?

In all cases in which the judgments of a circuit court of appeals are not made final by the act of March 3d, 1891, chap. 517, there is of right an appeal or writ of error to this court where the matter in controversy exceeds $1,000 in value besides costs. 26 Stat. at L. 826, 828.

Among the cases in which the judgments or decrees of the circuit courts of appeals are made final are those in which the jurisdiction of the circuit court 'is dependent entirely upon the opposite parties to the suit or controversy being aliens and citizens of the United States or citizens of different States.' 26 Stat. at L. 828, chap. 517.

The opposite parties here are Stewart, the relator, a citizen of Maine, for whose benefit the suit was brought, and the sureties on the bond of Watson, who are all citizens of Missouri. The government is the nominal, while Stewart is the real, plaintiff. His citizenship is to be regarded in any inquiry as to jurisdiction. Browne v. Strode, 5 Cranch, 303, 3 L. ed. 108; McNutt v. Bland, 2 How. 9, 11 L. ed. 159; Maryland use of Markley v. Baldwin, 112 U. S. 490, 28 L. ed. 822, 5 Sup. Ct. Rep. 278.

But does it not appear from the petition itself that the case was one of which the circuit court could take cognizance independently of the citizenship of the real parties in interest? This question must receive an affirmative answer. The suit was directly upon a bond taken by the circuit court in conformity...