Stephens v. First Nat. Bank of Nev.

• Decision Date: 20 June 1947
• Docket Number: 3479.
• Parties: STEPHENS v. FIRST NAT. BANK OF NEVADA et al.
• Court: Nevada Supreme Court

182 P.2d 146

64 Nev. 292

STEPHENS v. FIRST NAT. BANK OF NEVADA et al.

No. 3479.

Supreme Court of Nevada

June 20, 1947

Appeal from District Court, First Judicial District, Ormsby County Clark J. Guild, Judge.

Action between Una E. Stephens and First National Bank of Nevada and August A. Glanzmann, as administrator of the estate of Paul F. Glanzmann, deceased, concerning the ownership of certain United States Savings bonds, wherein Una E. Stephens appealed from an adverse judgment. On suggestion by the Attorney General of the United States of the interest of the United States in the matter in litigation and motion for leave to appear and participate for the protection of the interest of the United States.

Motion denied.

W. T. Mathews, of Carson City, for appellant.

George L. Sanford and Richard R. Hanna, both of Carson City, for respondents.

Miles N. Pike, U.S. Atty., of Reno, in pro. per.

HORSEY, Justice.

The United States Attorney for the District of Nevada, pursuant to the direction of the Attorney General of the United States, on January 21, 1947, appearing in his proper person filed in this court a paper or document entitled 'Suggestion of the Interest of the United States in the Matter in Litigation and Motion for Leave to Appear and to Participate in the Litigation for the Protection of the Interest of the United States'. In the prayer of the said suggestion and motion, the United States prays:

'1. That your petitioner be permitted to appear in these proceedings and to present, upon proper leave granted, a brief setting forth the points and authorities relied upon by the United States as the obligor of the bonds which are the subject matter of the action, to sustain its contentions regarding the issue of the ownership of said bonds, and to be fully heard on oral argument before this Court, for the purpose of presenting, and attending to, the interest of the United States.

'2. That this Court determine and decree the controlling force and effect of the federal laws and regulations applicable to the ownership of the bonds in question, and render its decision and judgment herein accordingly.

'3. For such other and further relief as justice and equity may require.'

If the above-quoted objectives stated in the prayer were the only objectives sought to be accomplished by the appearance, the same could be as readily accomplished by requesting leave to file a brief as amicus curiae, as was done in the lower court. But there are other objectives stated on page 2 of the memorandum of authorities in support of the motion, same being stated as follows: 'Participation of such limited character, however, is not deemed sufficient, despite the fact that the United States Attorney accepts the record on appeal in its present form and does not intend to seek permission to introduce evidence or otherwise interfere with the orderly course of appellate procedure in this Court. It is believed, however, that the appearance of the United States Attorney, at the direction of the Attorney General, to protect the interest of the United States, extends beyond the limited status of amicus curiae, and entitles the United States Attorney to take whatever other steps or proceedings may be legal or proper in the premises for the protection of the interest of the United States. In the instant case, such other contemplated steps or proceedings might include a petition for a rehearing or an appeal from a decision adverse to the interests of the United States.'

Summarized, the reasons as stated in the said suggestion of interest, and in said memorandum of authorities, for the motion for leave to appear in the manner and by the method requested, are:

That the decision of the lower court in the instant case, wherein the laws of the State of Nevada as to the ownership and devolution of personal property were applied in the determination of the ownership of certain United States Savings Bonds involved in the litigation, and registered, under the United States Treasurer's rules and regulations, in the names of appellant, Una E. Stephens, and of Paul F. Glanzmann, now deceased, as co-owners, is contrary to such rules and regulations of the Secretary of the Treasury (Treas. Dept. Car. No. 530, 5th Revision), promulgated pursuant to, and under the authority of, the Second Liberty Bond Act, as amended, 31 U.S.C.A. § 757c; that the decision and judgment of the lower court constitute a variance from the uniform national interpretation as to bonds of that character; that the application of the state law in the premises renders the United States unable to fulfill its contractual obligation as to said bonds, and, therefore, that such decision and judgment tends to obstruct and impede the United States in the exercise of its power to borrow money, and are in contravention and violation of the Supremacy Clause, Article VI, Clause 2, of the Constitution of the United States.

The United States Attorney, in his memorandum of authorites, has set forth verbatim the sections of 5 U.S.C.A., conferring certain authority upon the Attorney General and upon the Solicitor General of the United States.

5 U.S.C.A. §§ 309, 316, 317, are, respectively, as follows:

Sec. 309. 'Conduct and argument of cases by Attorney General and Solicitor General. Except when the Attorney General in particular cases otherwise directs, the Attorney General and Solicitor General shall conduct and argue suits and writs of error and appeals in the Supreme Court and suits in the Court of Claims in which the United States is interested, and the Attorney General may, whenever he deems it for the interest of the United States, either in person conduct and argue any case in any court of the United States in which the United States is interested, or may direct the Solicitor General or any officer of the Department of Justice to do so.'

Sec. 316. 'Interest of the United States in pending suits. The Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in any suit pending in any of the courts of the United States, or in the courts of any State, or to attend to any other interest of the United States.'

Sec. 317. 'Superintending district attorneys and marshals. The Attorney General shall exercise general superintendence and direction over the attorneys and marshals of all the districts in the United States and the Territories as to the manner of discharging their respective duties; and the several district attorneys and marshals are required to report to the Attorney General an account of their official proceedings, and of the state and condition of their respective offices, in such time and manner as the Attorney General may direct.'

It is by virtue of the authority conferred upon him by Section 316 that the Attorney General of the United States, acting by the United States Attorney for the District of Nevada, moved, by way of suggestion of the interest of the United States, to appear and participate in the pending litigation, in this court.

Section 316 empowers the Attorney General to send the Solicitor General, or any officer of the Department of Justice, to any state or district of the United States 'to attend to the interests of the United States in any suit pending in any of the courts of the United States, or in the courts of any State * * *'.

It is obvious that the Congress of the United States, by such authorization of the Attorney General, did not intend to invest him with unlimited authority to attend to the interests of the United States in pending suits an any manner, or at any time, or at any stage of the proceedings, in such courts as he might see fit, but contemplated and intended, of course, that such authority should be exercised in obedience to, and in conformity with, the laws and rules of procedure applicable to, and governing, the particular courts in which such suits were pending.

In 54 Am.Jur., sec. 121, p. 630, the rule, or principle, above indicated is set forth as follows: 'Sec. 121. Application of General Rules of Procedure.--In the absence of any special statutory provision to the contrary, the United States, when bringing suit for the vindication of its rights, is subject to the general rules of practice and procedure which govern private litigants. The general rule that he United States is not bound by a statute, unless expressly named therein, does not apply to legislative acts which prescribe the general rules of procedure in civil actions. * * *'; citing in support of the text: State of Ohio v. Helvering, 292 U.S. 360, 54 S.Ct. 725, 78 L.Ed. 1307; United States v. Union Pac. R. Co., 105 U.S. 263, 26 L.Ed. 1021; United States v. Thompson, 93 U.S. 586, 23 L.Ed. 982; Green v. United States, 9 Wall., U.S., 655, 19 L.Ed. 806; State ex rel. Hamilton v. Standard Oil Co., 190 Wash. 496, 68 P.2d 1031.

The United States Attorney, in said memorandum of authorities has cited numerous cases from the federal courts, and a few from state courts, in which the Attorney General of the United States, acting usually through the United States Attorney for the district in which the suit in which he sought to appear was pending, has been permitted to appear, by way of suggestion of the interest of the United States. It appears from the authorities that the cases in which the Attorney General, appearing by way of suggestion of the interest of the United States, has been allowed to so appear in the first instance in an appellate court, other than the Supreme Court of the United States when acting as a court of original jurisdiction and not as an appellate court, are very few indeed. In suits between states, as in State of...