Love v. Mantz

• Decision Date: 08 August 1934
• Docket Number: No. 9937.,9937.
• Citation: 72 F.2d 631
• Parties: LOVE v. MANTZ.
• Court: U.S. Court of Appeals — Eighth Circuit

72 F.2d 631 (1934)

LOVE v. MANTZ.

No. 9937.

Circuit Court of Appeals, Eighth Circuit.

August 8, 1934.

Harold R. Love, in pro. per.

G. F. Mantz, of Minneapolis, Minn., for appellee.

Before STONE and GARDNER, Circuit Judges.

GARDNER, Circuit Judge.

This is an appeal from a judgment entered after an order sustaining demurrer to appellant's complaint. The action is brought under the provisions of sections 231, 232, 233, and 234, title 31, USCA, by appellant for himself and for the United States. The liability sought to be enforced is predicated upon section 80, title 18, USCA. This section provides that whoever shall make or cause to be made or presented for payment or approval to or by any officer in the civil, military, or naval service of the United States, or any department thereof, any claim upon or against the government of the United States, or any department or officer thereof, knowing such claim to be false, fictitious, or fraudulent, or who, for the purpose of obtaining or aiding to obtain the payment or approval of such claim, or for the purpose and with the intent of cheating, swindling, or defrauding the government, or any of its departments, shall knowingly and willfully falsify or conceal, or cover up by any trick, scheme, or device, a material fact, or make or cause to be made any false or fraudulent statements or representations, or make any false claim, affidavit, or deposition, knowing the same to contain fictitious statement, shall be fined not more than $10,000, or imprisoned not more than ten years.

Section 231 of title 31, USCA, provides in effect that any person, with certain exceptions not here material, who shall do or commit any of the acts prohibited by any of the provisions of section 80, title 18, USCA, shall forfeit and pay to the United States the sum of $2,000, and in addition, double the amount of damages which the United States may have sustained by reason of the doing or committing of such act, together with the costs of the suit.

Section 232 of title 31, USCA, provides that such a suit may be brought and carried on by any person as well for himself as for the United States.

It appears from the allegations of the complaint that both parties to this action are attorneys at law. An action was commenced for one Alfred M. Atkinson in the District Court of the United States, for the District of Minnesota, against the United States collector of internal revenue to recover certain taxes. While the action was pending an adjustment was made on July 22, 1931, by which it was agreed that the sum of $14,732.26 should be paid to the plaintiff in that suit. A check in this amount, payable to Atkinson, was issued and delivered to the defendant United States collector of internal revenue. The appellee herein was the attorney of record for the plaintiff in that suit, while the appellant herein appeared of record as the attorney in fact for the plaintiff in that suit. While this check was in the hands of the collector, defendant in the Atkinson suit, and on December 8, 1931, the appellee presented the following affidavit:

"State of Minnesota, County of Hennepin — ss.:

"G. F. Mantz, being first duly sworn, deposes and says, on oath: That he is and since the institution of the above entitled action has been attorney for plaintiff herein; that he is and has been the sole and only attorney for plaintiff herein; that the above entitled action has not been tried or heard by the Court; that prior to the date hereof several parties to this action had duly compromised and settled same for the sum of $14,732.26; that affiant has been informed by said defendant, Levi M. Willcuts, and believes said defendant has in his possession, a check of the United States of America for full payment of the above named amount compromised and settled for by the plaintiff herein.

"That said check is in sufficient...