United States v. Kelly

• Decision Date: 24 October 1898
• Docket Number: 425.
• Citation: 89 F. 946
• Parties: UNITED STATES v. KELLY.
• Court: U.S. Court of Appeals — Ninth Circuit

89 F. 946

UNITED STATES v. KELLY.

No. 425.

United States Court of Appeals, Ninth Circuit.

October 24, 1898

H. S Foote, U.S. Atty.

J. N Teal and W. W. Cotton, for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge.

This suit was commenced in the court below on the 29th day of January, 1892, by virtue of the act of congress of March 3 1887 (24 Stat. 505), to recover the sum of $4,616.15, alleged to be due the then plaintiff, defendant in error here, for services rendered the United States as marshal for the district of Oregon, and which amount had been disallowed by the first comptroller of the currency, and stricken from the accounts of the defendant in error, rendered by him to the treasury department. It seems from what little of the printed transcript is properly before the court that there was pending in the court below, along with the present suit, one brought by the United States against Penumbra Kelly, David P Thompson, and Harvey Alexander Hogue, and another by the United States against Penumbra Kelly, Philip A. Marquam, and Van B. De Lashmutt, in all of which suits the attorney for the United States on the one side and the attorneys for the opposite parties on the other side entered into the following stipulation in writing:

'(1) These causes will be referred to Wallace A. McCamant, master, to take and return the evidence; and the evidence so taken shall be used in each of the cases, and they shall all be tried as one case, as far as may be practicable. (2) Any question of pleading may be disposed of before the master, and the parties shall have the right to file such amended or substituted pleadings before him as they may deem necessary, including the right to David P. Thompson and Harvey Alexander Hogue to file their answer, which by mistake has been omitted.'

This stipulation is without date, but was filed in the court below June 8, 1895. On the preceding day-- June 7, 1895-- this order was entered in the court below in the present suit of Kelly against the United States:

'Now, at this date, come the parties to this cause by their attorneys, the plaintiff appearing by Mr. Dell Stewart and Mr. Edward N. Deady, of counsel, and the defendant by Mr. Daniel R. Murphy, United States attorney, and file herein their stipulation for reference of this cause to Wallace McCamant, master in chancery of this court; whereupon it is ordered by the court in pursuance of said stipulation that this cause be, and the same is hereby, referred to said master to take and return the evidence in this cause; and it is further ordered that the said parties may file such amended and substituted pleadings as they may deem necessary before said master.'

As no other stipulation appears in the record, the stipulation filed June 8, 1895, and above given, is probably that upon which the order of reference of June 7, 1895, was based. While the provision in this stipulation for the filing of amended or substituted pleadings before the master, as well as the fact that the court made an order of reference, would seem necessarily to imply that answers on the part of the respective defendants had already been filed, yet the certificate of the clerk is that the record contains a true and complete transcript of all the proceedings in the present cause, and no answer on the part of the United States to the plaintiff's petition anywhere appears. Nearly two years after the cause had thus been referred to a master to take and report the evidence in the cause, to wit, on the 23d day of March, 1897, a demurrer was filed by the United States attorney to the petition, upon the following grounds:

'That said petition doth not show any facts which entitle the petitioner to maintain said petition, or have the same considered by the court; that the matters and things in the said petition set forth do not show that the plaintiff has any claim in law, equity, or admiralty against the defendant; that the petition doth not show that this court hath jurisdiction of the matters and things therein set forth.'

No notice or disposition of this demurrer seems ever to have been taken, so far as disclosed by the record. Shortly after the day on which it was filed, to wit, June 5, 1897, McCamant, signing himself 'Referee,' filed his report, which states that 'he has taken the testimony, and herewith reports the same to the court, duly certified; the same consisting of the record of the proceedings before the referee, together with depositions taken elsewhere, and forwarded to the referee, and exhibits introduced by plaintiff and defendant. ' Embodied in this report are certain findings of fact and conclusions of law. The first four of these findings of fact are as follows:

'First. Plaintiff was the duly-qualified and acting marshal of the United States for the district of Oregon from the 1st day of August, 1884, to the 10th day of December, 1887. Second. During the period mentioned in the first finding, plaintiff furnished quarterly accounts of his fees, expenses, and disbursements, which were submitted every quarter to the district court of the United States for the district of Oregon, and were in each case by the said district court approved. Third. That during the time mentioned in finding No. 1 plaintiff performed at divers and sundry times services for the defendant, the compensation for which was provided by law. Fourth. That for the services so rendered by the said plaintiff, or claimed in the accounts of the said plaintiff as having been rendered, the defendant has refused to pay the sum of $2,466.47; that the defendant refuses to pay the same on the ground that the said sum of money is made up of disallowances which the defendant claims were proper to be made by the treasury officials from the sums claimed by plaintiff to be owing him from the defendant.'

The fifth finding is:

'That the disallowances so made by the defendant in the accounts of the plaintiff were unauthorized, and in violation of law, except the following.' Then follow 13 enumerated items of service, with the respective charges therefor, aggregating $528.98.

The sixth finding is:

'That the disallowances in accounts of plaintiff except those mentioned in the fifth finding of fact were improper in violation of law; that the improper disallowances amount to $1,937.53.'

The conclusion of law reported to the court was that plaintiff is entitled to judgment against the defendant in the sum of $1,937.53, together with the costs incurred by the plaintiff in the suit. The plaintiff on June 11, 1897, filed exceptions to the fifth finding of fact contained in the report.

On the 21st day of June, 1897, the cause came on before the court to be heard on motion of the plaintiff 'to confirm certain findings of the referee on file herein, and to disallow certain findings therein, and to confirm in part the conclusions of law as set out in said report; and, there being no objections made or filed thereto, the plaintiff appearing by Joseph N. Teal and Dell Stewart, of counsel, and the defendant appearing by Charles J. Schnabel, Asst. U.S. Dist. Attorney, and it appearing to the court that the above-entitled cause was heretofore referred to Wallace McCamant, Esq., to take the testimony and report the same with his findings of fact and conclusions of law therein, and the court being fully advised in the premises, it is considered, ordered, and adjudged that said report be confirmed in part and disallowed in part as hereinafter set out; and thereupon the court makes the following findings of fact. ' These findings of the court are, in substance, and almost literally, the same as the findings reported by the referee, except as to the items of service and the charges therefor embodied in the fifth finding of the referee, and by him disallowed; the court finding that only four of those items of service and the respective charges therefor, aggregating $101.08, should be disallowed; those items being:

(1) United States v. William Smith. Constructive mileage of C.E. Burns from Portland to Oregon City, November 25, 1885 ...............	$ 1 80
(2) United States v. Sam. Meecham. Claim for service in arresting the defendant; service claimed to have been rendered by Deputy Charles Frush: whole charge made $91.66. The finding is that this disallowance was proper, except as to the item of mileage from Portland to the Washington state line, and from the Washington state line to Portland, and the further sum of $4 for commitment of the prisoner. The finding therefore is that the disallowance is proper as to the sum of ............................................	78 36
(3) United States v. J. N. Clarke et al. Service claimed to have been rendered by Deputy D. L. Moomaw. Constructive mileage charge, Portland to Baker, 141 miles, at 12 cents .....................	16 92
(4) Voucher 59, United States v. Ah Lee. Charge for attendance at examination ............................................................	4 00
	-------
Total amount of disallowance found to be proper ..................	$101 08

The sixth finding made by the court below is:

'That the disallowances on the accounts of plaintiff, except those mentioned in the fifth finding of fact, were improper, and in violation of the law; that the improper disallowances amount to the sum of $2,365.43.' And as a conclusion of law the court found the plaintiff entitled to judgment against the defendant in that sum, for which judgment was, on the 21st day of June, 1897, entered in favor of the plaintiff and against the defendant. On the 13th day of July, 1897, the court filed an opinion embodying the same findings and conclusions. The defendant thereafter moved for...