United States v. Cummings, 6647.

• Decision Date: 08 June 1936
• Docket Number: No. 6647.,6647.
• Citation: 66 App. DC 107,85 F.2d 273
• Parties: UNITED STATES ex rel. ORDMANN v. CUMMINGS, United States Atty. Gen.
• Court: U.S. Court of Appeals — District of Columbia Circuit

66 App. DC 107, 85 F.2d 273 (1936)

UNITED STATES ex rel. ORDMANN v. CUMMINGS, United States Atty. Gen.

No. 6647.

United States Court of Appeals for the District of Columbia.

Argued May 6, 1936.

Decided June 8, 1936.

Thomas E. Rhodes, of Washington, D. C., for appellant.

Harry LeRoy Jones and John W. Scott, both of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.

GRONER, Associate Justice.

This is an appeal from an order of the Supreme Court of the District of Columbia overruling appellant's demurrer to appellee's answer in a mandamus proceeding filed June 17, 1935. Appellant, Ordmann, elected to stand on his demurrer, and the court accordingly dismissed his petition. The pleadings show the facts as follows:

Ordmann, an attorney, on June 27, 1934, sued certain nonresident Germans to recover $6,587.60 claimed to be due him for professional services rendered. On the same day he filed an affidavit of merit, and on it a writ of attachment before judgment issued. He caused this writ to be served upon the Alien Property Custodian, Urey Woodson, to require him to answer interrogatories concerning property and credits in his hands belonging to the German defendants. The Custodian answered June 30, 1934, that he had certain patents and thirty-nine thousand odd dollars in cash; and that if, when, and as any part thereof should become payable to the former owners, the amount on hand would be subject to the deduction of a general administration fee of 2 per cent., but that under the laws and executive orders then in force no part of the money or property was payable or returnable to the former owners.

Thereafter — notice by publication having been given and the nonresident Germans not appearing — judgment for $6,587.60 was on September 18, 1934, entered in favor of Ordmann. Ordmann thereupon moved for a judgment of condemnation "against the credits of said defendants attached by the United States Marshal on the 27th day of June, 1934, in the hands of Homer S. Cummings as Attorney General of the United States and as successor to the authority, rights, privileges, powers, and duties conferred and imposed on the Alien Property Custodian by law, and/or Executive order as successor to Urey Woodson as Alien Property Custodian, garnishee." The court then entered the following order: "Whereupon, it appearing by the answer of the said garnishee filed herein on June 30, 1934, that he holds in trust for the said defendants * * * cash in the sum of $39,784.79, and nothing having been shown to the contrary, it is ordered that so much thereof of said sum as may be necessary be condemned in the hands of Homer S. Cummings as Attorney General of the United States and as successor to the authority, rights, privileges, powers, * * * and as successor to Urey Woodson as Alien Property Custodian, garnishee, toward the satisfaction of the plaintiff's recovery herein and execution thereof be had."

In his petition for mandamus Ordmann alleged that the Germans had not appealed from the judgment entered against them and that the Attorney General had not appealed from the judgment of condemnation, and that both judgments had become final; that demand had been made upon the Attorney General and that he had refused to pay. He prayed that the writ issue.

A number of interesting questions are discussed, but in the view we take of the case the decision and order of the lower court can be sustained on two grounds.

First. As we have seen, the writ of attachment and interrogatories were served on Urey Woodson, then Alien Property Custodian, as garnishee, on June 27, 1934. He answered on June 30th following. But on May 1, 1934, by Executive Order No. 6694, the office of Alien Property Custodian was abolished, and the authority, powers, and duties of the office were transferred to the Attorney General. This order became effective July 1, 1934. From and after that date Urey Woodson ceased to be Alien Property Custodian, and his powers and duties were taken over by the Attorney General as Acting Alien Property Custodian. On September 18, 1934, Ordmann took a default judgment against the German debtors in the sum of six thousand odd dollars, with interest and costs, and on the same day took a judgment of condemnation, purporting to be under section 30 of the Trading with the Enemy Act, as amended by the Settlement of War Claims Act of 1928 (45 Stat. 254, 50 U.S.C.A. Appendix § 30), against Homer S. Cummings as Attorney General and as successor to the office and functions of the Alien Property Custodian. The record shows, and it is admitted as a fact, that the Attorney General had never been substituted as the party garnishee; nor had any additional attachment or garnishment of any nature been issued against him; nor had he in any way been made a party to the action at law or the garnishment proceeding. And in his answer to the petition for mandamus he alleges that no notice was served upon him of pendency of the garnishment proceeding until November 11, 1934, which date was after judgment entered and after the time had elapsed for taking an appeal therefrom.

We think the trial court was without jurisdiction to enter an order against the Attorney General without making him a party to the suit by an order of substitution after notice, and we likewise think that the service on Urey Woodson, the former custodian, was not effective in any respect to bind his successor. When Woodson ceased to hold office, the suit abated as to him, The Secretary v. McGarrahan, 9 Wall. 298, 313, 19 L.Ed. 579, and when the judgment of condemnation against the Alien Property Custodian was entered, the former custodian — the one on whom notice had been served — no longer possessed any power to execute the commands of the writ, and the present custodian had never had notice of the suit and never had answered it or had opportunity to answer it, and therefore the default judgment taken against him was without effect. This is so, we think, because the garnishment proceeding is "an action, suit, or other proceeding brought * * * against an officer of the United States" within the meaning of the Substitution Act (28 U.S.C.A. § 780).

Sections 122 and 132, title 24, D.C. Code of 1929, provide for the service of writs of attachment and garnishment upon any person holding property or credits belonging to the defendant named in the action. Section 123 provides for the garnishee's answering interrogatories concerning the credits in his possession. Section 135 gives him the right to plead any pleas which the defendant could plead if he had...