McKinstry v. United States
| Decision Date | 24 December 1889 |
| Parties | McKINSTRY v. UNITED STATES. |
| Court | U.S. District Court — Southern District of Alabama |
United States Magistrates 11
The petitioner brought suit in the United States circuit court S.D. Alabama, against the United States for fees due him from the United States as one of the commissioners of that court. The itemized bill sued on amounts to the sum of $1,823.45 and is the aggregate of several accounts which petitioner had made out, and which had been formally approved by the court and presented to the department, and upon which various sums had been allowed, amounting in the aggregate to $666.46 leaving as a balance due to the commissioner, disallowed fees, the sum of $1,156.99. On the trial of the case, the petitioner proved by his own testimony and documentary evidence that he had rendered the services for which he claimed fees, and upon this evidence the case was submitted. The court rendered an opinion with regard to the law of the case, and thereupon referred the matter to a special master to report the state of the account in accordance with the opinion of the court. McKinstry v. U.S., 34 F. 211. The master made report in accordance therewith, finding that for certain services rendered by the petitioner, as commissioner, he was entitled to the sum of $893.05, which was subject to a credit of $666.46, leaving a balance due the petitioner of $226.59. This report was confirmed by the court, and thereupon the court entered the following findings of fact and conclusions of law:
CONCLUSION OF LAW.
'Upon the said findings of fact the court decides, as conclusion of law, that the claimant is entitled to recover the sum of two hundred and twenty-six and fifty-nine one-hundredths dollars.'
A motion for a new trial has been entered in the case, accompanied with the following stipulation of counsel:
'All findings against claimant in opinion 34 Fed.Rep.,in McKinstry's Case, pages 211-216, following Strong's Case, pages 17-25. In omitting to find as a fact whether the services that were not allowed had or not been rendered. The undisputed testimony of claimant showing that claimant had rendered all the services charged, and that his accounts containing charges therefor had been duly approved by the court. The accounts under oath and disallowances, and papers and dockets showing entries charged for, being in evidence. In disallowing charges for the items of: Complaint, as certificates at 15 cents per folio; as depositions, at 20 cents per folio. Acknowledgments to recognizances. Docket fees. Docket entries. Copies, except of warrants, under charge for copy of 'process.' Entering returns of warrants and subpoenas. Per diem charges. Certificates payment of witnesses (pay-rolls) in duplicate. It is stipulated and agreed that the above shall be considered as the propositions involved in the application for rehearing, and that the services charged for were duly proven on the trial to have been rendered, except as specifically found differently in the opinion of the court.
(Signed)
'GREGORY L. & H. T. SMITH, 'GEORGE H. PATRICK, 'Att'ys for Claimant, W. D. McKinstry.
(Signed)
'M. D. Wickersham, U.S. Attorney.
'June 17th, 1889.
'It is further agreed that the question of the jurisdiction of the said circuit court to hear and determine causes based upon claims or demands against the government, like the claims or demands embraced in this suit, shall be considered as if duly pleaded and at issue on the original trial of the case.
'GEORGE H. PATRICK, for Claimant.
(Signed)
'M. D. WICKERSHAM, U.S. Atty, for Defendant.
'June 17th, 1889.' he first clause of the first section of the act, approved March 3, 1887,
G. L. & H. T. Smith and G. H. Patrick, for the motion.
M. D. Wickersham, U.S. Dist. Atty.
Before LAMAR, Justice, and PARDEE, J.
(after stating the facts as above). The motion for a new trial has been submitted upon briefs, on the one side as to the merits, and on the other as to jurisdiction. At the outset, I desire to say that the whole investigation has been rendered more complex and difficult from the fact that the petitioner sued upon his claim as upon a general running account against the United States, allowing credits as payments had been made thereon, instead of suing on the disallowed items. So far as I have the record before me, it seems to be impossible to tell what items of the petitioner's account were allowed by the department and what were rejected. On this motion for a new trial, the counsel for the United States has interposed a sort of plea to the jurisdiction. Its exact pertinency is not apparent. If well taken, it would be in aid of the motion for a new trial; because, prior to dismissing the suit for want of jurisdiction, it would be necessary to grant the motion for a new trial. Further than this, I must confess that I do not exactly understand the points sought to be made by the district attorney.
The first clause of the first section of the act, approved March 3, 1887, entitled 'An act to provide for the bringing of suits against the government of the United States,' provides--
'That the court of claims shall have jurisdiction to hear and determine the following matters: First, all claims founded upon the constitution of the United States, or any law of congress, except for pensions, or upon any regulation of an executive department, or upon any contract, expressed or implied, with the government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty, if the United States were suable: provided, however, that nothing in this section shall be construed as giving to either of the courts herein mentioned jurisdiction to hear and determine claims growing out of the late civil war, and commonly known as 'war claims,' or to hear and determine other claims which have heretofore been rejected, or reported on adversely by any court, department, or commission authorized to hear and determine the same.'
The second section of the said act provides--
'That the district courts of the United States shall have concurrent jurisdiction with the court of claims as to all matters named in the preceding section, where the amount of the claim does not exceed one thousand dollars; and the circuit courts of the United States shall have such concurrent jurisdiction in all cases where the amount of such claim exceeds one thousand dollars, and does not exceed ten thousand dollars.'
It seems to be perfectly clear that the petitioner's claim is one embraced with the provisions of the first clause of the first section, and is not included within the proviso thereto. It is well understood that in passing the said act of March 3, 1887, the congress was making a direct and decided innovation in...
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