United States v. Finn
| Decision Date | 27 December 1956 |
| Docket Number | No. 14770.,14770. |
| Citation | 239 F.2d 679 |
| Parties | UNITED STATES of America, Appellant, v. George C. FINN, Charles C. Finn, Peter A. Bancroft, Vineland Elementary School District of Kern County and International Airports, Inc., Appellees. VINELAND ELEMENTARY SCHOOL DISTRICT OF KERN COUNTY, Appellant, v. UNITED STATES of America, George C. Finn, Charles C. Finn, Peter A. Bancroft and International Airports, Inc., Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Warren E. Burger, Asst. Atty. Gen., Laughlin E. Waters, U. S. Atty., Louis Lee Abbott, Asst. U. S. Atty., Los Angeles, Melvin Richter, Marvin C. Taylor and Richard M. Markus, Attys., Dept. of Justice, Washington, D. C., for appellant the United States.
Roy Gargano, County Counsel, Kit L. Nelson, Asst. County Counsel, Bakersfield, Cal., for appellant Vineland Elementary School Dist.
A. J. Blackman, Los Angeles, Cal., for appellee International Airports, Inc.
George C. Finn and Charles C. Finn in pro. per.
Before MATHEWS, STEPHENS and CHAMBERS, Circuit Judges.
These appeals are from a judgment of the United States District Court for the Southern District of California in a civil action wherein the United States was plaintiff, and George C. Finn, Charles C. Finn, Peter A. Bancroft, Vineland Elementary School District of Kern County, hereafter called Vineland, and International Airports, Inc., hereafter called International, were defendants.1
The action was commenced on July 3, 1952. An amended complaint was filed on September 16, 1952. The amended complaint alleged, in substance, that on June 25, 1946, and at all times thereafter, plaintiff was the owner and entitled to possession of a C-46A Curtiss-Commando airplane bearing United States Army serial number 42-3645; that on June 25, 1946, plaintiff and Vineland entered into a written agreement a copy of which was attached to the amended complaint; that on July 25, 1946, plaintiff transferred possession of the airplane to Vineland, subject to the agreement; that on February 28, 1951, in violation of the agreement, Vineland, acting by and through Bancroft,2 purportedly sold the airplane to the Finns (George C. Finn and Charles C. Finn); that Bancroft and the Finns induced the violation; that the Finns took possession of the airplane on February 28, 1951, and retained such possession at all times thereafter; that International took possession of the airplane on August 31, 1951, and retained such possession at all times thereafter; that the value of the airplane was $70,000; that the value of its use was $8,000 a month; that each of the defendants claimed an interest in the airplane adverse to plaintiff; and that none of their claims had any legal validity.
The prayer of the amended complaint was, in substance, that plaintiff have judgment (1) against all the defendants, declaring plaintiff to be the owner and entitled to possession of the airplane, free and clear of all claims and demands of defendants or any of them; (2) against the Finns and International for possession of the airplane or for $70,000 as the value thereof; (3) against the Finns, Bancroft, Vineland and International for damages in the sum of $198,000; and (4) against all the defendants for costs.
On October 21, 1952, International filed an answer which denied all of the above mentioned allegations of the amended complaint and alleged, in substance, that International had (1) a chattel mortgage on the airplane securing an indebtedness of $15,000 owing by the Finns to International and (2) a mechanic's lien on the airplane securing an indebtedness of $14,478.43 owing by the Finns to International.
On February 2, 1953, Bancroft and Vineland filed an answer which denied all of the above mentioned allegations of the amended complaint and alleged, in substance, that Vineland was the owner and entitled to possession of the airplane on June 25, 1946, and at all times thereafter.3
On February 16, 1953, the Finns filed an answer, hereafter called their original answer, which denied all of the above mentioned allegations of the amended complaint except the allegation that on June 25, 1946, plaintiff and Vineland entered into the agreement mentioned in the amended complaint, the allegation that on July 25, 1946, plaintiff transferred possession of the airplane to Vineland, subject to the agreement, and the allegation that on February 28, 1951, Vineland, acting by and through Bancroft, purportedly sold the airplane to the Finns. The Finns' original answer alleged, in substance, that Vineland had the right to, and did, on February 28, 1951, sell the airplane to the Finns, and that the Finns had the right to, and did, on that date, purchase the airplane from Vineland.
On September 15, 1954, the Finns filed an answer, hereafter called their amended answer, which contained a counterclaim denominated as such.4 That part of the Finns' amended answer which preceded their counterclaim5 stated: "The Finns, as a first defense, repeat each and every denial contained in the Finns' original answer to plaintiff's allegations contained in plaintiff's amended complaint, with the same force and effect as though they were fully set forth here, and the Finns' original answer is made a part hereof." That part of the Finns' amended answer which preceded their counterclaim also stated what purported to be "a separate and affirmative defense to plaintiff's allegations contained in plaintiff's amended complaint."6
The Finns' counterclaim alleged, in substance, that the Finns were the owners and entitled to possession of the airplane; that plaintiff had illegally seized the airplane, was in possession thereof and was claiming title thereto; and that, as a result of the illegal seizure and detention of the airplane by plaintiff, the Finns had been and would be damaged in the sum of $15,000 and in the further sum of $8,000 for each month the airplane was withheld from them.
The prayer of the amended answer (including the counterclaim)7 was, in substance, that the Finns have judgment against plaintiff dismissing the amended complaint; adjudging plaintiff's claims to be invalid and void; quieting title to the airplane in the Finns; awarding the Finns the airplane or $70,000 as the value thereof; awarding the Finns $15,000 if the airplane was returned to them, but, when returned, was not in the same condition as when taken from them; and awarding the Finns $8,000 for each month the airplane was withheld from them.
Plaintiff filed a reply8 which denied all of the allegations of the Finns' counterclaim except the allegation that plaintiff was in possession of the airplane and was claiming title thereto.
Beginning on October 27, 1954, and ending on November 5, 1954, the issues raised by the amended complaint, International's answer, Bancroft and Vineland's answer, the Finns' original answer and that part of the Finns' amended answer which preceded their counterclaim were tried by the District Court with an advisory jury.9 On November 5, 1954, after those issues were submitted to the jury, the District Court, sitting without a jury,10 conducted a trial of the issues raised by the Finns' counterclaim and plaintiff's reply.
Thereafter, on November 5, 1954, the jury returned a special verdict consisting of answers to interrogatories submitted to it. On December 8, 1954, the District Court filed an opinion.11 On February 7, 1955, the District Court filed its findings12 and conclusions and rendered a judgment which, in effect, ordered, adjudged and decreed that plaintiff take nothing by this action, and that the Finns recover of plaintiff on their counterclaim (1) the airplane or $50,000 as the value thereof, (2) $23,300 for loss of use of the airplane and (3) $15 a day from December 31, 1954, until delivery of the airplane or payment of $50,000 to the Finns.
The judgment was entered on February 8, 1955. Plaintiff moved for a new trial on February 18, 1955. On February 28, 1955, the District Court made an order which, in effect, amended the judgment so as to provide that, if plaintiff elected to surrender the airplane, delivery thereof should be made to International, instead of the Finns. The motion for a new trial was denied on March 31, 1955. Appellant and Vineland appealed from the judgment — appellant on April 13, 1955, and Vineland on May 27, 1955.
On the grounds and for the reasons stated in its opinion,13 we agree with the District Court that plaintiff was not the owner of the airplane at any time after July 25, 1946, and was not entitled to any relief in this action.
The question now to be considered is whether the District Court had jurisdiction of the Finns' counterclaim.
The Finns' counterclaim did not plead a set-off.14 Instead, it sought affirmative relief. Thus, in and by their counterclaim, the Finns attempted to sue plaintiff (the United States). Since plaintiff cannot be sued without its consent,15 and since plaintiff's consent to be sued can be given only by Congress,16 no court has jurisdiction of any suit against plaintiff unless Congress has given plaintiff's consent thereto.17 As regards plaintiff's immunity from suits to which Congress has not given plaintiff's consent, and as regards jurisdiction of such suits, there is no distinction between counterclaims and original suits.18 Congress never gave plaintiff's consent to the Finns' counterclaim.
There is no merit in the contention that, by bringing this action, plaintiff gave its consent to the Finns' counterclaim. This action was brought for plaintiff by its attorneys — the United States Attorney for the Southern District of California and two of his assistants. Plaintiff's attorneys were not authorized to give its consent to the Finns' counterclaim,19 nor did they attempt or pretend to do so. As indicated above, only Congress could have given such consent.20
Rule 13(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., cited by the District Court...
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