White v. Weiss

• Decision Date: 03 July 1925
• Citation: 7 F.2d 139
• Parties: WHITE v. WEISS, Collector of Internal Revenue.
• Court: U.S. District Court — Northern District of Ohio

7 F.2d 139 (1925)

WHITE v. WEISS, Collector of Internal Revenue.

District Court, N. D. Ohio, E. D.

July 3, 1925.

White, Cannon & Spieth, of Cleveland, Ohio, for plaintiff.

The United States Attorney, for defendant.

WESTENHAVER, District Judge.

Plaintiff has filed herein on March 6, 1925, a motion for further relief in collection of an alleged balance unpaid on judgment heretofore rendered. The action originally was one to recover back income tax paid under protest, alleged to have been unlawfully assessed. On March 31, 1922, judgment was rendered in plaintiff's favor for $8,126.43, which sum included interest previously accruing on the payments as made. A certificate of probable cause was applied for and issued at the time this judgment was rendered. An appeal was prosecuted to the Circuit Court of Appeals, resulting in an affirmance; and on a writ of certiorari the United States Supreme Court took jurisdiction and affirmed the judgment of the lower courts. See Weiss v. Stearn, 265 U. S. 242, 44 S. Ct. 490, 68 L. Ed. 1001, 33 A. L. R. 520. Upon coming down of the mandate, judgment was entered thereon in this court for said sum of $8,126.43, and the costs in all courts, to draw interest at the rate of 6 per cent. per annum from the 7th day of February, 1922, the date of the entry of the original judgment, until paid. A further certificate of probable cause was applied for and issued at the time of entering the judgment.

Upon application made in conformity to the regulations of the Treasury Department and the Commissioner of Internal Revenue, the judgment and costs as entered, with interest to July 14, 1924, was paid. It is plaintiff's contention that he was entitled to interest until date of payment. It is the contention of the district attorney and solicitor for the Commissioner of Internal Revenue, conducting the defense, that plaintiff is not entitled to interest except to July 14, 1924, the date of the final judgment, which, it is said, accords with the rule settled and established in Schell v. Cochran, 107 U. S. 625, 2 S. Ct. 827, 27 L. Ed. 543.

Plaintiff by his motion asks, first, an order requiring the proper officials of the United States Treasury to allow and pay the sum of $307.44, the amount of interest accruing from July 14, 1924, to March 3, 1925; or, second, in the alternative, that execution be awarded against the defendant personally for said unpaid interest. Elaborate briefs have been filed. Due consideration has been given to the arguments advanced and to the authorities cited. My conclusions will be stated, for information of counsel, without elaboration.

Obviously, the first branch of the motion is not within the jurisdiction of this court. The officials against whom the order is asked are not parties to this case, and are not within the reach of its process. The relief sought by the second branch of the motion is expressly prohibited by statute. See R. S. § 989 (U. S. Comp. Stats. 1916, § 1635). After judgment rendered against a collector, as was defendant, for recovery of money exacted by or paid to him, and by him paid into the Treasury in performance of his official duty, the court may certify that there was probable cause for the act done by the collector or other officer, or that he acted under the directions of the Secretary of the Treasury, or other proper officer of the Government. When this certificate is applied for and made, the statute forbids the issue of execution on the judgment against the collector, and requires the amount so recovered to be paid out of...