Vowinckel v. Sutherland

• Decision Date: 23 January 1928
• Docket Number: No. 5231.,5231.
• Citation: 24 F.2d 196
• Parties: VOWINCKEL v. SUTHERLAND, Alien Property Custodian.
• Court: U.S. Court of Appeals — Ninth Circuit

24 F.2d 196 (1928)

VOWINCKEL v. SUTHERLAND, Alien Property Custodian.

No. 5231.

Circuit Court of Appeals, Ninth Circuit.

January 23, 1928.

A. P. Black, of San Francisco, Cal., for appellant.

George J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal., George R. Farnum, Asst. Atty. Gen., and Dean Hill Stanley and P. H. Marcum, Sp. Asst. Attys. Gen., for appellee.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

RUDKIN, Circuit Judge.

The appellant heretofore brought suit against the Alien Property Custodian and others to establish his right and title to certain real and personal property seized by the Custodian under the Trading with the Enemy Act, 40 Stat. 411 (Comp. St. §§ 3115½a-3115½j). On the original hearing in the court below a motion to dismiss the complaint was granted, but on appeal to this court the decree of dismissal was reversed. Vowinckel v. First Federal Trust Co., 10 F.(2d) 19. Upon a retrial after the case was remanded a decree was entered in favor of the appellant for the return of the property so seized by the Custodian, with a strict account of all such property. 15 F.(2d) 872. The Custodian complied with the decree thus entered by returning to the appellant all property in his custody, after deducting certain expenses incurred by the Department of Justice in resisting the former appeal to this court, amounting in all to the sum of $759.09. The items deducted were as follows: "(1) Expenses of Deputy Attorney General C. W. McClean, for coming to San Francisco from Washington to argue the case in the Circuit Court of Appeals, amounting to $617.99. (2) The government printer, $94.90. (3) Department of Justice expenses, $46.20."

The appellant thereupon filed an affidavit in the court below, setting forth the failure of the Custodian to fully comply with the terms of the decree, and praying for an order requiring him to show cause why the amount so deducted and withheld should not be returned to the affiant. The order to show cause was granted, but was later discharged, and the application therefor dismissed on the motion of the Custodian. From the order of dismissal this appeal is prosecuted.

The deductions complained of were made under section 24 of the Act of March 4, 1923, 42 Stat. 1516 (Comp. St. § 3115½o), which authorizes the Custodian to pay all taxes and special assessments heretofore or hereafter lawfully authorized by any body politic against any money or other property held by him or by the Treasurer of the United States. "and to pay the necessary expenses incurred by him or by any depositary for him in securing the possession, collection, or control of any such money or other property, or in protecting or administering the same."

The principal question involved is the right of the Alien Property Custodian to deduct from the funds in his hands expenses incurred by the United States in the unsuccessful defense of a suit brought against the Custodian by a successful claimant.

Section 9 of the Trading with the Enemy Act, as amended by the Act of March 4, 1923, supra (42 Stat. 1511 Comp. St. § 3115½e), provides that, if the claimant establishes the interest, right, title, or debt claimed by him, the court shall order the payment, conveyance, transfer, assignment, or delivery to the claimant of the money or other property so held by the Alien Property Custodian, or by the Treasurer of the United States, or the interest therein to which the court shall determine the claimant is entitled, and if suit is instituted the money and property shall be retained in the custody of the Alien Property Custodian, or in the Treasury of the United States, as provided by the act, and until any final judgment or decree which shall be entered in favor of the claimant shall be fully satisfied by payment or conveyance, transfer, or assignment, or delivery by the defendant, or by the Alien Property Custodian, or Treasurer...