Garvin v. Kogler

• Decision Date: 27 April 1921
• Docket Number: 2683.
• Citation: 272 F. 442
• Parties: GARVIN, Alien Property Custodian, v. KOGLER.
• Court: U.S. Court of Appeals — Third Circuit

272 F. 442

GARVIN, Alien Property Custodian, v. KOGLER.

No. 2683.

United States Court of Appeals, Third Circuit.

April 27, 1921

Frederick M. P. Pearse, Asst. U.S. Atty., of Newark, N.J., for plaintiff in error.

Otto C Sommerich, of New York City, and Lintott, Kahrs & Young, of Newark, N.J., for defendant in error.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY Circuit Judge.

Kogler brought this action in the District Court against the Alien Property Custodian and Rudolph Chillingworth under the Act of Congress of October 6, 1917, commonly known as 'Trading with the Enemy Act.' 40 Stat.at Large 411, 419 (Comp. St 1918, Comp. St. Ann. Supp. 1919, Secs. 3115 1/2a-3115 1/ 2j).

By his bill he averred that Chillingworth was an alien enemy within the meaning of the Act, owning stock of a New Jersey corporation later acquired and sold by the Alien Property Custodian; that early in 1914 he contracted with Chillingworth to render services to the Chillingworth corporation at a monthly salary of 600 marks; that he performed these services until, on June 30, 1918 Chillingworth's indebtedness to him amounted to $7,282.80, reckoned at 23.8 cents to the mark; and that prior to the commencement of this suit he filed a claim for that sum with the Alien Property Custodian. The bill concluded with a prayer that the Custodian be decreed to pay from the proceeds of the sale of Chillingworth's stock the amount of the plaintiff's claim.

Personal service was made upon the Alien Property Custodian and constructive service upon Chillingworth. On hearing, the Alien Property Custodian stipulated with the plaintiff that he would interpose no defense to the claim as pleaded and would contest only the basis on which transmutation of the indebtedness from marks into dollars should be made. The court entered a decree against the Alien Property Custodian on the averments of the bill and against Chillingworth pro confesso for the full amount of the claim at the par value of the mark. On appeal by the Alien Property Custodian the only questions brought here and argued were: First, an allowance of fees to plaintiff's counsel; and, second, the rule governing the periods and corresponding rates at which German marks should under the contract be transmuted into American dollars.

Our consideration of these questions was arrested by a doubt-- which later grew into conviction-- that this court, as well as the trial court, is without jurisdiction of the case. It is, of course, essential in federal procedure that the right of a plaintiff to institute an action and the jurisdiction of the court to hear it shall appear on the face of the bill by direct and positive averment. Yeandle v. P.R. Co., 169 F. 938, 95 C.C.A. 282; Hill v. Walker, 167 F. 241, 92 C.C.A. 633. It is equally fundamental that a federal appellate court will of its own motion deny its jurisdiction, and that of the court from which the record comes, unless jurisdiction affirmatively appears, although neither party raise the point in the argument. King Iron Bridge & Mfg. Co. v. Otoe County, 120 U.S. 225, 7 Sup.Ct. 552, 30 L.Ed. 623; 1 U.S.Comp.St. 751, 755.

What does the bill show? In declaring on the action the plaintiff counts upon the statute. The statute provides for appropriation by the Government of enemy property during war. It also affords 'any person,' having an interest in enemy property so appropriated or to whom such enemy is indebted, processes by which he may reach his property in satisfaction, namely, by filing a claim with...