Gibson v. Peters

• Decision Date: 13 November 1893
• Docket Number: No. 61,61
• Citation: 150 U.S. 342,14 S.Ct. 134,37 L.Ed. 1104
• Parties: GIBSON v. PETERS
• Court: U.S. Supreme Court

150 U.S. 342

14 S.Ct. 134

37 L.Ed. 1104

GIBSON

v PETERS.

No. 61.

November 13, 1893.

Statement by Mr. Justice HARLAN:

The plaintiff in error brought this action against the defendant in error, as receiver of the Exchange National Bank of Norfolk, to recover the value of legal services alleged to have been rendered, or offered to be rendered, by him as United States district attorney in a certain suit brought in the name of that receiver against one R. H. McDonald, and which suit was subsequently, in August, 1885, dismissed, on motion of the receiver, as settled.

Pursuant to a written stipulation of the parties, the case was heard by the court without a jury. Judgment was rendered for the defendant in conformity with the opinion of the circuit judge. 35 Fed. Rep. 721, 729; 36 Fed. Rep. 487. The case is before this court upon a certificate of division of opinion.

There was evidence on behalf of the plaintiff as to the entent and value of the services rendered, or offered to be rendered, by him as United States district attorney. The defendant introduced evidence tending to show that the plaintiff had neither rendered, nor been requested by the receiver to render, any services in the action against McDonald; that by direction of the comptroller of the currency the receiver employed other counsel; that the plaintiff's present claim had never been presented to the treasury department, nor been allowed by the comptroller of the currency; and that he had not been directed by the solicitor of the treasury to render the alleged services.

The following are the questions upon which the judges were divided in opinion:

(1) Whether the United States district attorney is entitled by virtue of his office to appear and act as counsel for the receiver of a national bank in collecting its assets and winding up its affairs without the request or consent of said receiver, and without the direction of the solicitor of the treasury.

(2) Whether, conceding his rights so to appear, and he does so appear, of his own motion, is he entitled to any extra compensation beyond that prescribed by law for his official services?

(3) Whether, conceding his right so to appear and act, he is entitled to any extra compensation beyond that provided by law for his official services, except such as the comptroller of the currency may allow after his claim therefor has been presented to the treasury department, according to the provisions of section 299 of the Revised Statutes.

(4) Whether the United States district attorney, whose official service had been tendered to such receiver, and declined by him for the reason that he had employed other counsel, acting under the directions of the comptroller of the currency and solicitor of the treasury, is entitled to extra compensation for such offer of services, whether the service was rendered by the district attorney or not.

(5) Whether, conceding his right so to receive extra com- pensation when he has offered to appear and act as official counsel without the request or consent of the receiver, is such compensation payable out of the assets of the bank in the hands of the receiver or out of the funds provided by law for the payment of district attorneys for their official services?

Robert M. Hughes, for plaintiff in error.

Theo. S. Garnett, W. W. Dudley, and L. T. Michener, for defendant in error.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

It is provided by section 380 of the Revised Statutes of the United States that all suits and proceedings arising out of the provisions of law governing national banking associations in which the United States or any of its officers or agents are parties shall be conducted by the district attorneys of the several districts, under the direction and supervision of the solicitor of the treasury.

The suit brought against McDonald was one arising out of the provisions of the act of congress governing such associations, and the receiver in whose name it was instituted was an officer and agent of the United States, within the meaning of the above section. Kennedy v. Gibson, 8 Wall. 504; Price v. Abbott, 17 Fed. Rep. 506; Frelinghuysen v. Baldwin, 12 Fed. Rep. 396; Hendee v. Railroad Co., 26 Fed. Rep. 677; Bank v. Mixter, 114 U. S. 463, 5 Sup. Ct. Rep. 944.

But the important inquiry is whether a district attorney is entitled to special compensation for services rendered by him in a suit of the class mentioned in section 380.

The appellant's contention is that he is entitled to reasonable compensation, to be paid from the funds in the hands of the receiver, under that clause of the statute relating to the dissolution and receivership of national banking associations, which provides that all expenses of any receivership shall be paid out of the assets of such association before distribution of the proceeds thereof. Rev. St. § 5238.

Section 770 of the Revised Statutes fixes the sum which a district attorney is entitled to receive on account of salary.

Sections 823 to 827, inclusive, prescribe certain fees that may be taxed and allowed to attorneys, solicitors, and proctors in the courts of the United States, to district attorneys, and to other officers. Those sections are as follows:

'Sec. 823. The following and no other compensation shall be taxed and allowed to attorneys, solicitors, and proctors in the courts of the United States, to district attorneys, clerks of the circuit and district courts, marshals, commissioners, witnesses, jurors, and printers in the several states and territories, except in cases otherwise expressly provided by law. But nothing herein shall be construed to prohibit attorneys, solicitors, and proctors from charging to and receiving from their clients, other than the government, such reasonable compensation for their services, in addition to the taxable costs, as may be in accordance with general usage in...