New Amsterdam Cas. Co. v. United States, Civ. No. 3999.

• Decision Date: 21 April 1947
• Docket Number: Civ. No. 3999.
• Citation: 71 F. Supp. 155
• Parties: NEW AMSTERDAM CAS. CO. v. UNITED STATES et al.
• Court: U.S. District Court — Western District of Pennsylvania

71 F. Supp. 155

NEW AMSTERDAM CAS. CO. v. UNITED STATES et al.

Civ. No. 3999.

District Court, W. D. Pennsylvania.

April 21, 1947.

J. M. McCandless, of Pittsburgh, Pa., for New Amsterdam Cas. Co.

Charles F. Uhl, U. S. Atty., of Pittsburgh, Pa., specially appearing on behalf of W. A. Julian, Treasurer.

GIBSON, District Judge.

The United States Attorney for the Western District of Pennsylvania, has appeared specially and moved the court to quash the summons against the Treasurer of the United States. He has also moved to dismiss the action against the United States.

The basis for the motion to quash the summons against the Treasurer is the allegation that he is subject to action in his official position only in the District of Columbia.

The motion to dismiss the action against the United States is founded on the proposition that the Act of Congress, 28 U.S.C.A. § 41(20), giving jurisdiction to the District Courts in claims cases does not confer the right in an action in which other defendants are joined with the United States; and also on the ground that no claim is actually made against the United States.

The action is the outgrowth of two bonds in which the plaintiff is a surety. The defendant, Sprague & Sprague, Inc., contracted to do certain work for the United States, and plaintiff was surety on one bond for $37,250, conditioned for faithful performance of the work, and another bond for a like amount conditioned for the payment of all labor and material furnished in the prosecution of said work.

The instant action is a reversal of the ordinary practice under the circumstances. The defendants other than the United States, the Treasurer and Sprague & Sprague, Inc., were sub-contractors who furnished labor or materials to Sprague & Sprague, Inc. Instead of an action by the United States for use of the sub-contractors against the surety, the surety has instituted the present suit, wherein it alleges that the United States has $9,011.56 due Sprague & Sprague, Inc. under the contract, and prays that the Treasurer be enjoined from paying that sum to Sprague & Sprague, Inc. or any of the defendants claiming to have furnished labor or materials; and further prays that the United States and the Treasurer be ordered to pay said sum into court; and still further prays that the labor and material defendants be required to file an account of their claims.

As against the United States and the Treasurer the court is without jurisdiction to proceed and the action must be dismissed. As to the Treasurer no action can be brought against him except in the District of Columbia. The action against the United States is controlled by United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 770, 85 L.Ed. 1058, from which quotations follow:

"Except as Congress has consented there is no jurisdiction in the Court of Claims more than in any other court to entertain suits against the United States, or for the review of its decisions by appellate courts. Luckenbach Steamship Co. v. United States, 272 U.S. 533, 536, 47 S.Ct. 186, 71 L.Ed. 394, et seq. For that reason it has been uniformly held, upon a review of the statutes creating the court and defining its authority, that its jurisdiction is confined to the rendition of money judgments in suits brought for that relief against the United States, United States v. Alire, 6 Wall. 573, 18 L.Ed. 947; United States v. Jones, 131 U.S. 1, 9 S.Ct. 669, 33 L.Ed. 90, and if the relief sought is against others than the United States the suit as to them must be ignored as...