Preston v. United States

• Decision Date: 30 November 1960
• Docket Number: No. 16167.,16167.
• Citation: 284 F.2d 514
• Parties: John W. PRESTON, Jr., personally and as Executor of the Estate of John W. Preston, deceased, Oliver O. Clark and David D. Sallee, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

284 F.2d 514 (1960)

John W. PRESTON, Jr., personally and as Executor of the Estate of John W. Preston, deceased, Oliver O. Clark and David D. Sallee, Appellants, v. UNITED STATES of America, Appellee.

No. 16167.

United States Court of Appeals Ninth Circuit.

November 30, 1960.

John W. Preston, Jr., Los Angeles, Cal., Oliver D. Clark, La Canada, Cal., David D. Sallee, Santa Monica, Cal., for appellants.

Perry W. Morton, Asst. Atty. Gen., Laughlin E. Waters, U. S. Atty., Los Angeles, Cal., Roger P. Marquis, A. Donald

Mileur, Attys., Dept. of Justice, Washington, D. C., for appellee.

Before STEPHENS and JERTBERG, Circuit Judges, and LINDBERG, District Judge.

STEPHENS, Circuit Judge.

Quoting from the opening brief of the United States in this appeal it is stated: "This appeal is concerned with whether the appellants, attorneys for the plaintiffs in this suit, are at the present time entitled to a judgment for attorneys' fees in this action. This appeal is from the Order for Dismissal of Petition for Supplemental Attorneys' Fees and Expenses Advanced, and for Liens to Secure Payment Thereof and the Ancillary Order Quashing Notice of Pendency of Action."¹

The gist of the proceeding is the claim of the petitioning attorneys that their services have not only benefited their employers but have incidentally benefited other persons who are not and never have been parties in the suit. They claim that because, as they allege, such others have been benefited incidentally and consequentially, they must pay to the petitioning attorneys reasonable "supplemental" attorneys' fees and a just proportion of moneys advanced in the main action.

It is agreed by all including the court that the doctrine of class actions does not apply to this litigation.

There is an Indian reservation situate at Palm Springs, California, the land of which is held in trust by the government of the United States through the Secretary of the Interior. This tract of land is subject to release from the trust in separate allotments of equal value to each member of the Agua Caliente Band of Indians. There have been attempts by some members of the Band, through the years, to secure action on the part of the Secretary of the Interior to proceed with the allotment program but these attempts have had little success. However, a movement to get authority by statute to authorize any member of the Band to bring action in the District Court for a judgment awarding him a selected area of land as his or her allotment was finally enacted into law. Petitioning attorneys were employed to prosecute the case known as Segundo v. United States, D.C. S.D.Cal.1954, 123 F.Supp. 554, under the permissive statute. The action was successful in the District Court. We affirmed generally on appeal, but remanded for correction in some related particulars. See United States v. Pierce, 9 Cir., 1956, 235 F.2d 885. At the time the instant proceedings were in progress, plaintiff-attorneys were performing services in the case relating to "equalizing" the allotment.² As we have already said, it is alleged in the attorneys' petition that some of the services the petitioning attorneys had performed and were performing in connection with the Segundo case, inured to the benefit of other members of the Band. Such services, according to the allegation in the attorneys' petition, required a trip to Washington, D. C., many trips from Los Angeles, California to court and to Riverside, California, and to the town of Palm Springs, including services in regard to the main street of Palm Springs, California.

It was and is the theory of the attorneys that notwithstanding they had never been authorized to perform services for the persons who were so allegedly, consequentially benefited, they should be assessed to pay them attorneys' fees reasonable for the benefits they had incidentally received in Segundo.

It is claimed that this result, i. e., a money judgment and a lien therefor upon each allotment must be awarded against each allottee and against all un-allotted lands of the reservation with no attempt whatever to establish the court's jurisdiction over the persons of the allottees. We are not in accord with this contention and the District Court found that it had no power to do what the attorneys requested in their petition.

Also we think it is implicit in the court's ruling that even if the court had acquired jurisdiction of the person, it would still be lacking in power to grant a money judgment against any member of the Band in circumstances wherein it is not claimed that petitioning attorneys were authorized directly or by implication to perform the services for which they now seek contribution as to attorneys' fees and as to moneys advanced by the attorneys.

The attorneys attempt to support their theory by three cases, i. e., Trustees v. Greenough, 1881, 105 U.S. 527, 26 L.Ed. 1157; Sprague v. Ticonic National Bank, 1939, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184; and Central...