Gibson v. Peters

Statement by Mr. Justice HARLAN:

The plaintiff in error brought this action against the defendant in error, as receiver of the Exchange National Bank of Norfolk, to recover the value of legal services alleged to have been rendered, or offered to be rendered, by him as United States district attorney in a certain suit brought in the name of that receiver against one R. H. McDonald, and which suit was subsequently, in August, 1885, dismissed, on motion of the receiver, as settled.

Pursuant to a written stipulation of the parties, the case was heard by the court without a jury. Judgment was rendered for the defendant in conformity with the opinion of the circuit judge. 35 Fed. Rep. 721, 729; 36 Fed. Rep. 487. The case is before this court upon a certificate of division of opinion.

There was evidence on behalf of the plaintiff as to the entent and value of the services rendered, or offered to be rendered, by him as United States district attorney. The defendant introduced evidence tending to show that the plaintiff had neither rendered, nor been requested by the receiver to render, any services in the action against McDonald; that by direction of the comptroller of the currency the receiver employed other counsel; that the plaintiff's present claim had never been presented to the treasury department, nor been allowed by the comptroller of the currency; and that he had not been directed by the solicitor of the treasury to render the alleged services.

The following are the questions upon which the judges were divided in opinion:

(1) Whether the United States district attorney is entitled by virtue of his office to appear and act as counsel for the receiver of a national bank in collecting its assets and winding up its affairs without the request or consent of said receiver, and without the direction of the solicitor of the treasury.

(2) Whether, conceding his rights so to appear, and he does so appear, of his own motion, is he entitled to any extra compensation beyond that prescribed by law for his official services?

(3) Whether, conceding his right so to appear and act, he is entitled to any extra compensation beyond that provided by law for his official services, except such as the comptroller of the currency may allow after his claim therefor has been presented to the treasury department, according to the provisions of section 299 of the Revised Statutes.

(4) Whether the United States district attorney, whose official service had been tendered to such receiver, and declined by him for the reason that he had employed other counsel, acting under the directions of the comptroller of the currency and solicitor of the treasury, is entitled to extra compensation for such offer of services, whether the service was rendered by the district attorney or not.

(5) Whether, conceding his right so to receive extra compensation when he has offered to appear and act as official counsel without the request or consent of the receiver, is such compensation payable out of the assets of the bank in the hands of the receiver or out of the funds provided by law for the payment of district attorneys for their official services?

Robert M. Hughes, for plaintiff in error.

Theo. S. Garnett, W. W. Dudley, and L. T. Michener, for defendant in error.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.