United States v. Preston

• Decision Date: 21 May 1956
• Docket Number: No. 14555.,14555.
• Citation: 232 F.2d 77
• Parties: UNITED STATES of America and Lee Arenas, Appellants, v. John W. PRESTON, Oliver O. Clark, and David D. Sallee, Appellees. Lee ARENAS, Appellant, v. John W. PRESTON, Oliver O. Clark, and David D. Sallee, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

232 F.2d 77 (1956)

UNITED STATES of America and Lee Arenas, Appellants, v. John W. PRESTON, Oliver O. Clark, and David D. Sallee, Appellees.

Lee ARENAS, Appellant, v. John W. PRESTON, Oliver O. Clark, and David D. Sallee, Appellees.

No. 14555.

United States Court of Appeals Ninth Circuit.

February 23, 1956.

Rehearing Denied May 21, 1956.

Perry W. Morton, Asst. Atty. Gen., John F. Cotter, Edmund B. Clark, Roger P. Marquis and John C. Harrington, Attys., Dept. of Justice, Washington, D. C., Laughlin E. Waters, U. S. Atty., Los Angeles, Cal., for appellant United States.

Irl Davis Brett, Los Angeles, Cal., for appellant Lee Arenas.

John W. Preston, Los Angeles, Cal., Oliver O. Clark, La Canada, Cal., David D. Sallee, Santa Monica, Cal., for appellees.

Before STEPHENS and CHAMBERS, Circuit Judges, and TAYLOR, District Judge.

STEPHENS, Circuit Judge.

The United States in its appeal accurately states the two ultimate issues in the following language:

"1. Whether interest on attorneys\' fees may be imposed against a fund in court which represents restricted Indian land.

"2. Whether an attorney\'s lien on the proceeds of land recovered through his efforts in one suit includes expenses incurred in another suit."

In addition to the issues mentioned, there is a question as to the effectiveness of the appeal.

In Arenas v. Preston, 9 Cir., 1950, 181 F.2d 62, this court, upon appeal, approved the impressment of a lien on the Indian's allotment of land for the attorney fees and cash advanced for costs by attorneys for the Indian. However, we remanded the case to the district court with instruction to ascertain and fix the reasonable sum for attorney fees instead of fixing the fees upon a contract which had been entered into between Lee Arenas and the attorneys. The district court complied with the conditions of the remand in a judgment and supplemental decree entered April 6, 1951. The district court's decree was silent as to the interest on the sums so fixed. The decree did, however, provide:

"Fourth. That the plaintiff, Lee Arenas, be and he is hereby allowed a period of six (6) months from and after the date of the entry of the judgment and supplemental decree herein within which to pay the compensation and expenses of suit awarded to the petitioners, * * *."

It then provided in the next paragraph for the public sale of the lands and for the payment out of the proceeds of the sums referred to, together with expenses, and payment of the balance to the United States in trust for the plaintiff.¹ In the next paragraph of the decree the court provided for its own retention of jurisdiction to confirm any sale of the lands, distribute funds received from the sale, and generally —

"* * * in order to fully effectuate and enforce the judgment and supplemental decree herein in accordance with the equitable jurisdiction, practice and procedure of this district court."

No payment was made upon the judgment within the six-month period, but many months thereafter the attorneys filed a petition with the district court requesting a sale of the property under the judgment which petition was granted and the order provided that a commissioner should sell sufficient lands to pay expenses of the sale, the attorney fees and costs, and for the first time in the litigation, the interest thereon was mentioned as follows:

"* * * together with lawful interest thereon at the rate of 7% per annum from April 6, 1951, the date of entry of the supplemental decree * * *."

The sale was to be made not earlier than October 24, 1953. This order of sale or judgment was made August 6, 1953, and entered August 10, 1953.

Thereafter, the United States made a motion to the district court to delete from the order of sale or judgment, the inclusion of interest on the unpaid sums, upon the ground that:

"* * * the judgment herein as entered the April 6, 1951, judgment does not require the payment of interest, and interest is not recoverable herein in any event."

The court denied the motion as made, but ordered the supplemental decree to be modified so as to require interest to run from October 6, 1951, the end of the six-month period in which the fees were payable, without resort to sale of the land. The last referred to order (modifying the order of sale) was made October 26, 1953, and entered November 10, 1953. No appeal was ever taken from this order.

Subsequently, and before public sale of the property, private sale of certain portions of the property was made, and by stipulation and court order the cash proceeds were deposited in the registry of the court, subject to the same lien as was impressed on the land.

Appellee Preston petitioned the district court for an order of payment, out of the money in the court's registry, of the interest and costs involved (together with advances made in another action which will be later clarified) and, after the issuance of a show-cause order, a hearing, and the findings of fact and conclusions of law, the court approved by its judgment dated August 21, 1954, and entered August 23, 1954. It is from this latter judgment that the instant appeal by the United States and Lee Arenas is taken as to the items of interest and the advances in the other action.

It is the contention of the appellee that the basis of the ruling, on the inclusion of the interest and costs in the judgment, is the order of sale made October 26, 1953, and entered November 10, 1953, from which no appeal was ever taken, and that the inclusion of interest and costs became res judicata thereby.

To this contention little defense is made but appellant United States says in its brief (and Arenas advances the same idea):

"Since the suit involved restricted Indian land it was a suit against the United States and the court\'s power was limited to the extent of the consent of Congress. Congress had not permitted the imposition of interest. Therefore the order or judgment attempting to charge interest against the fund was more than erroneous — it was void. United States v. United States Fidelity & Guaranty Co., 1940, 309 U.S. 506, 514 60 S.Ct. 653, 84 L.Ed. 894; United States v. New York Importing Rayon Co., 1947, 329 U.S. 654, 658-663 67 S.Ct. 601, 91 L.Ed. 577; United States v. Shaw, 1940, 309 U.S. 495 60 S.Ct. 659, 84 L.Ed. 888; Tillson v. United States, 1879, 100 U.S. 43 25 L.Ed. 543; Carr v. United States, 1878, 98 U.S. 433 25 L.Ed. 209. Consequently, whether or not appealed from, the order of November 10, 1953, was without effect."

Unquestionably, the suit is, in nature, against the United...