Sutherland v. International Ins. Co. of New York, No. 362.

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtMANTON, L. HAND, and SWAN, Circuit
Citation43 F.2d 969
PartiesSUTHERLAND, Allen Property Custodian, v. INTERNATIONAL INS. CO. OF NEW YORK.
Docket NumberNo. 362.
Decision Date28 July 1930

43 F.2d 969 (1930)

SUTHERLAND, Allen Property Custodian,
v.
INTERNATIONAL INS.
CO. OF NEW YORK.

No. 362.

Circuit Court of Appeals, Second Circuit.

July 28, 1930.


Charles J. Schuck, of Wheeling, W. Va. (Nathan Ottinger, of New York City, of counsel), for appellant.

Rumsey & Morgan, of New York City (David Rumsey and Henry N. Arnold, both of New York City, and Louis A. Johnson, of Clarksburg, W. Va., of counsel), for appellee.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

L. HAND, Circuit Judge.

The sole question involved in this appeal is whether the Alien Property Custodian may appear by a solicitor of his own selection, or whether a district attorney or the Attorney General must represent him. It is therefore not necessary to set out the bill at large except to say that it was based upon the rights of German enemies which the Custodian had seized, for certain sums alleged to be due by contract from a domestic insurance company to the Germans. The Custodian authorized the suit, appearing by a private solicitor. The defendant authorized and filed a counterclaim to which the plaintiff replied. The case being in this posture, the defendant moved to dismiss the bill for the reason stated above, and the judge granted the motion.

Section 485 of title 28 of the U. S. Code (28 USCA § 485), which had its origin in

43 F.2d 970
the Act of September 24, 1789, provides that "it shall be the duty of every district attorney to prosecute, in his district * * * all civil actions in which the United States are concerned." This was enlarged in 1906 (title 5, U. S. Code, § 310 5 USCA § 310), to include the Attorney General, "any officer of the Department of Justice," or attorney specially designated by the Attorney General, who must be duly commissioned and take an oath of office (title 5, U. S. Code, § 315 5 USCA § 315). While this statute does not in terms forbid any officer of the United States to appear by a private attorney in a civil action, we understand the practice of the departments to have been uniform, or nearly so, not to do so, and the courts have several times said or decided that this was its intent. The Confiscation Cases, 7 Wall. 454, 19 L. Ed. 196, indeed involved only the question whether the Attorney General might, against the wishes of an informer, dismiss an appeal in a suit to confiscate confederate property under the Act of August 6, 1861 (12 Stat. 319), in which the informer had a half interest. However, the opinion announced obiter (page 457 of 7 Wall.) that it was the settled rule of United States courts to recognize no suits prosecuted in the name and for the benefit of the United States unless it was represented by a district attorney. While this is perhaps not conclusive, as it was not in any sense made the basis of the decision, it cannot be disregarded, even though the citations given as authority, except a dictum of Judge Betts in U. S. v. McAvoy, 4 Blatch. 418, Fed. Cas. No. 15,654, do not bear out the text. Moreover, Justice Livingstone so ruled in U. S. v. Morris, 1 Paine, 209, Fed. Cas. No. 15,816, and so did Justice Blatchford in U. S. ex rel. West v. Doughty, 7 Blatch, 424, Fed. Cas. No. 14,986. So far as we can find these are the only cases which have dealt with the question, for although U. S. v. Morris was affirmed in 10 Wheat. 246, 6 L. Ed. 314, the point was not discussed. In U. S. v. Griswold, 5 Sawy. 25, Fed. Cas. No. 15266, Judge Deady held that the section here in question did not apply to an action brought under section 232 of title 31 of the U. S. Code (31 USCA § 232). This was a qui tam action, well known in England, whence we imported it, which, though prosecuted in the name of the United States, was within the control of the informer. It was sued at his charge and he was subject to costs, his share in the recovery being deemed a sufficient inducement. It would have been inconsistent with this that he should have the service of the public prosecutor, and moreover the very language of the section makes it plain that he was not to have it, since otherwise there would be no meaning in the provision that he could not discontinue without the consent of the district attorney. The Alien Property Custodian is a public officer having no interest in the suit at bar; his position has no resemblance to that of a qui tam plaintiff

While the authority is thus somewhat meagre, and the Supreme Court has never actually ruled upon it, the reasons are strong to take such a view. The government has provided legal officers, presumably competent, charged with the duty of protecting its rights in its courts. It has specifically authorized these to act, exacting from them compliance with the formalities required of a public officer, even when appointed by the Attorney General. Their authority extends to such...

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24 practice notes
  • Persico, In re, No. 880
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 19, 1975
    ...private persons to use the grand jury for their own purposes is obvious enough. See Sutherland v. International Ins. Co. of N. Y., 43 F.2d 969 (2d Cir.), cert. denied, 282 U.S. 890, 51 S.Ct. 103, 75 L.Ed. 785 While acknowledging the power of the Attorney General, or any person authorized by......
  • Leonard v. United States Postal Service, No. 73-1270.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 17, 1974
    ...Wall. (72 U.S.) 342, 18 L.Ed. 646 (1866); FTC v. Guignon, 390 F.2d 323 (8th Cir. 1968); Sutherland v. International Ins. Co. of New York, 43 F.2d 969 (2d Cir.), cert. denied, 282 U.S. 890, 51 S.Ct. 103, 75 L.Ed. 785 2 A related provision, 39 U.S.C. § 2601(a), provides that the Postal Servic......
  • United States v. Crispino, No. 74 Cr. 932.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 24, 1975
    ...States . . . ." 7 Act of August 2, 1861, 12 Stat. 285, previously codified at 5 U.S.C. § 317. 8 In Sutherland v. International Ins. Co., 43 F.2d 969, 970 (2d Cir. 1930), Judge Learned Hand commented that the Confiscation cases had "announced obiter (page 457 of 7 Wall., 19 L.Ed. 196) that i......
  • F. PALICIO y COMPANIA, SA v. Brush, No. 61 Civ. 2299.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 21, 1966
    ...U.S. 315, 47 S.Ct. 361, 71 L.Ed. 658 (1927); In re Retail Chemists Corp., 66 F.2d 605 (2 Cir. 1933); Sutherland v. International Ins. Co., 43 F.2d 969 (2 Cir. 1930). This question, usually raised by motion in the action, may, and often does, go to the very heart of the controversy being lit......
  • Request a trial to view additional results
24 cases
  • Persico, In re, No. 880
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 19, 1975
    ...private persons to use the grand jury for their own purposes is obvious enough. See Sutherland v. International Ins. Co. of N. Y., 43 F.2d 969 (2d Cir.), cert. denied, 282 U.S. 890, 51 S.Ct. 103, 75 L.Ed. 785 While acknowledging the power of the Attorney General, or any person authorized by......
  • Leonard v. United States Postal Service, No. 73-1270.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 17, 1974
    ...Wall. (72 U.S.) 342, 18 L.Ed. 646 (1866); FTC v. Guignon, 390 F.2d 323 (8th Cir. 1968); Sutherland v. International Ins. Co. of New York, 43 F.2d 969 (2d Cir.), cert. denied, 282 U.S. 890, 51 S.Ct. 103, 75 L.Ed. 785 2 A related provision, 39 U.S.C. § 2601(a), provides that the Postal Servic......
  • United States v. Crispino, No. 74 Cr. 932.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 24, 1975
    ...States . . . ." 7 Act of August 2, 1861, 12 Stat. 285, previously codified at 5 U.S.C. § 317. 8 In Sutherland v. International Ins. Co., 43 F.2d 969, 970 (2d Cir. 1930), Judge Learned Hand commented that the Confiscation cases had "announced obiter (page 457 of 7 Wall., 19 L.Ed. 196) that i......
  • F. PALICIO y COMPANIA, SA v. Brush, No. 61 Civ. 2299.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 21, 1966
    ...U.S. 315, 47 S.Ct. 361, 71 L.Ed. 658 (1927); In re Retail Chemists Corp., 66 F.2d 605 (2 Cir. 1933); Sutherland v. International Ins. Co., 43 F.2d 969 (2 Cir. 1930). This question, usually raised by motion in the action, may, and often does, go to the very heart of the controversy being lit......
  • Request a trial to view additional results

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