688
FEDERAL REPORTER,
vol. 38.
violate the intent,: if· not the' literal terms, of the rthIioval 1'provisions of: the act of March· 8, 1887, to permit· a defendant,' after the time to answer a complaint has expired, to obtain an ex pa.rt6 order extending his -time, contrary to the practice of the state court, and then, by removing the cause, prevEl11t.the plaintiff from applying to the state court to vacate the order, and thus preclude him from an opportunity of having it treated as null. It shotlld be held, iIi such a'case, that the for removal was notfiled'ilbefore the defendant is required by the laws of the state or the rules of tbe state court" to answer the complaint., The motion to remand is granted. I. '
v.
UNci-ED .STATES.
, (Df8trict: Oov,'1't,N.1J.lziinota., 1. CotffiTs-FE'DERAL--tJbRtSDIC'rION
29, 188M
Under ,Rev. St. U. 'S.§563, oonferriog.on the United States districtcour.w jurisdiction suit,S at CP/Ilmoo by the United States." etc., the district court has jurisdiction of a set-off interposed 'by' the United States to an actioi! by a district attorney to recover fees brought underactCong.
SET·OFF, :BY UNITED'STATES.
B.
""
'",
:'"
DISTRICT ATTORNEYS-COUNSEL FEES.
Under Rev. St. U. S. § 824, providing that where an indictment "is tried be· fore a jury, and a conviction is had, the district attorney may be allowed, in addition to the attorney's fee herein provided, a counsel fee in proportion to the importance and difficulty of the case, not exceeding $80, "the attorney is entitled to a counsel fee in a case where the defendant pleads not guilty, and the prosecution produces. its, evidence, even t,hough the defendant offers no evidence, or then consents 'to 8 verdi'ct of
8.
SAME-REVISION OF ACCOUNTS BY TREASURY OFFICERS.
While Rev.St.' §'lJ46,'<ap.d act 1875; § I, seem to reserve to the accounting officers of the treasury a right of revision of the accounts of the district attorney after thllY been allowed. bytlle of reyiil7 ion must be eJ;ercisedwhen theacCQunt,comes before thQse officets for. action. upo;n it; and. after they have paslled the account as allowed bY the court, and it.has been paid. it,cannot afterwarQs be impeached', except for fraud or pal· pable I¢s,take." ·
At Law. 'Suit by Richard S. 'Tuthiil for fees as district: attorney. A. S. Bradley and Jesse A. Baldwin, for plaintiff. W. G. Ewing, U. S. Atty., for defendant. BLODGETT, J.' 'This stlit'is bl'ougnt under the ,second section oithe act of March 3, 1887, entitled" An act to provide for the bringing ofsuits 'against thegbvernment of;theUnitediBtates." ltis'to recoverac'laim' made by the: plaintiff against the'United States for:ser'Vices rende.redby 'the 'plaintiff while acting as .district attorney for this district. It mittedthat plaintiff. was duly appointed, confirmed" and· commissioned. as United States districtrliatrict,and that he was acting as such from the 1st day:.oLJ.anuary to the, 1st. day of October, 1886.
,1l1'.rU:rI.L, fl.
UNI'.rED STATltS.
539
shQws acting asciistrict plaintiff, by the direction of the secretary of the treasury, appeared for the dqfenda,nt,andconcitlcted tbe:d{lfel1se in the case of De Vrie8 v. Jesse S. HileJ-rup, whiclLWM a suit brought on the chancery side of the United cuit ;cowt Qf this district against Hildrup, as marshal ofthe United States' [ortilis in which the plaintiff sought to a of his real estate, whic,b. had beenmade on, an execution issued upon a judgment rendered, in said circuit court in favor of the United States against the pla-in1iff and o,thers, as sureties on the bond Harper, collector of,internal revenue for one of the collection of this state, set aside, and for an injunction restraining the execution of a deed· of said real estate. The 8uitseeoms to involved quite a large sum of money, and vigorously and ably contested by plaintiff in behalf of the government, (for it.was practically a suit against the government,) and resulted, after a {ullhearing upon pleadings and proofs, ina finding by the court in favoroftbe defendant, :and the dismissal of the bill for want of eqI ,and the proof satisfactorily shows that the. serv:ices of the plaintiff in that suitwererellsonably worth the sum of $500, which is the amount claimed, aod. which was. Illlowed to him by the learned circuit judge who heard the 'case. The proof also shows that plaintiff, w.hileacting as such district .attorn,ey, made a very full and thorough examination, by direction of the attorney general of the United States. in regard! t9 .the right of the United ,States to and maintain what is kno.wnasthe "outer harbor" of the city of Chicago, and that such services w:erereasonably worth the sum of $300. The plaintiff also claims the Iltlm of $175 for attendance 35 days before P. A. Hoyne, circuit court commissioner of this district, on examination of persons charged before such commissioner with crimes against the laws of the United States, and the. proof shows. that plaintiff, as such district attorney, rendered. in his bill of particulars filed services on the 35 different days in this case, ill examinations before the commissioner as charged; and section 824 of the Itevised Statutes of the United States fixes the compensation of the distriot attorney for such services at five dollars per day. These several ite.ms of service must therefore be deemed to be fullyestab-; Iished by the proof. I understand from the argument of the case that the only objection to this item of the plaintiff's claim for per diem before the commissioner is that the commissioner has not charged a per diem for thrl'le Qfthe days included in this account, that is, for the 6th, 7th, and 9th days of August, 1886, 'and it is therefore argued that the district atDotbave or been engaged before the commissioner on those days. ;But the dockets ·of the commissioneJ', produced in dence, show that. the hearilags were had on those days before him of cases wherein persons were charged with offenses against the United States" and that.the,plaintiff {or the government in those cases'; and the same fact is also shown by the oral testimony submitted in t1)e case. I roilY say that there is really no cpntest as to the fact that the plaintiff, servicl'ls these items of $500, $300, and $175, except as; to'the tbree p/fT,(/.iems the commissioner;and'the.
or .
540
"
already said, that these three per diems are proofclearly shows, as I a proper charge against the government. The main contest in this case is upon a plea of set-off interposed by the government. All these items' were duly allowed to the plaintiff by the court, pursuant to the provisions of the first section of the act of February 22,1875, entitled "An act regulating fees and costs," etc., (18 St. at Large, 333,) and the accounting officers of the treasury, after examination and reVision, allowed the sum of $750 in full for these three items, but instead of paying the sum' so allowed the first comptroller of the treasury proposed to apply the sum so allowed on a claim for $2,500, or near that amount, presented by the accounting officers against the plaintiff for fees which, as it was then, and is now, claimed, had been theretofore illegally charged by the plaintiff agl1inst the government, and duly audited, approved, and paid, and this is pleaded as a set-off or counterclaim against the plaintiff's right of recovery in this case, with a claim for a judgment against the plaintiff for thf balance due the government, after deducting what is found due the plaintiff on the claims set out in his petition. The first question made as to this set-off is that this court has no jurisdiction to pass upon or consider it, because the second section of the act of March 3, 1887, under which this suit is brought, only clothes the district court with jurisdiction to hear and adjudge on claims against the United States where the amount claimed does not exceed $1,000, but by clause 4, § 563, Rev. St. , jurisdiction is·conferred on this court" in all suits at common law brought by the United States, or any officer thereof; authorized by law to sue." And liE!' a set-off or counterclaim is, in effect, a suit by the defendant against the plaintiff, in which defendant may have a judgment against the plaintiff for the balance found due the defendant, (chapter 110, § 29, Rev. St. Ill.,) I Can See no reason why the set-off is ilot well pleaded, and this court authorized to pass upon its merits. .The facts in regard to this defense are that, while plaintiff was acting as district attorney of this district· he rendered accounts which were approved· by .the court, as required by the statute, for fees earned in the prosecutidn and trial of criminal causes, which accounts were duly allowed by the'fi:rst auditor and first comptroller of the treasury, and paid. Subsequently an accountant of the department of justice examined the records oithe court in regard to these accounts for fees, and reported that the'plaintiff,as such district attorney, had wrongfully charged and been allowed attorney's fees ()f $20, and counsel fees 'in addition to such .attorney's fees to the am.Qunt of $30 or less in each case, tinder section 824 of the Revised Statutes, in a large number of c'riulinal cases tried before ajurYt where the record showed there wags verdict of guilty rendered by the II consent of the defendant," and that the g6vernmenthadthe rightto insist upon the repayment of these alleged illegal attorney and counsel fees, the aggregate of which amounts to the $2,500 now here pleaded as set-off. And in accordance with the reportand i'eco.mmendationof this examiner the comptroller insists upon applying so much ofplaintifflsaccountas is claimed in this suit, and admitted I
TUTHILL t1. UNITED STATES.
to be. valid, .upon this claim for repayment. An examination of the record in the cases in which the examiner reported these illegal attorney and coun,:" sel fees to have been allowed and paid,shows that indictments were duly found and returned into court by the grand jury; that the defendants were arraigned, and pleaded" not guilty;" and that a jury was duly selected, impaneled, and sworn; witnesses called, who were sworn aud te8':" tified in behalf of the government; and a verdict of guilty rendered; the clerk stating in the record that the verdict was taken" by consenJ of de;. fendant." And the assumption by the examiner and comptroller seems to be that these words, "by consent," imported that there was, ineffect, no trial by the jury, and hence only an attorney's fee of $10, and no counsel fee, was earned in those caseS. With all due respect to the astute examiner who reported theae fees as illegal, I must say that I construe these words, "by consent," found in the records, to simply and only mean that after the testimony for the prosecution had been submitted to the jury the defendants found themselves unable to contradict it, or interpose auy valid defense to it, and hence offered no testimony, subulitting the case on the proofs adduced by the prosecutiou. Every judge and lawyer who has had experience in the trial of criminal cases knows that it is a matter of common occurrence for a defendant to plead "not 'guilty," and put the prosecution to proof of the offense charged, hoping that the prosecution may fail in its proof on some material point, and thereby an acquittal may be secured, but when the proof is in, and the case is so clearly made out as to completely silence any attempt at answer, the verdict of guilty is submitted to in a certain and limited sense by consent, because no reason is urged by defendant against the sufficiency of the proof. The plea of "not guilty," interposed in these cases, made it imperative that a trial by jury should be had. If a trial by jury was had, I1.n attorney's fee of $20 in each case, and a counsel fee to some extent, may be said to have been earned, although the defendant may have offered no proof, and submitted to, or even consented to, a verdict of guilty. The statute provides that w!'lere "an indictment for a crime is tried before a jury, and a conviction is had, the district attorney may be allowed, in addition to the attorney's fee herein provided, a counsel fee in proportion to the impor-: tance and difficulty of the case, not. exceeding $30." The allowance of a counsel fee, as it seems to me, should be made by the court before whom the case is tried, and who must be presumed to know something of the importance and difficulty of the case; and this allowance of a COUllsel fee may be made on the special motion of the district attorney in each case, or it may be allowed by the court in the accounts of the district attorney. In either case it would be a judicial act. " , Section 846, Rev. St., and the first section of "An act regula.ting fees and costs, and for other,purposes, approved February 22, 1875," both seem to reserve to the acconntingofficers of the treasury a right of revision of, the ac<:;ounts of the district attorney,even after they have been allowed by the court; but it seems very clea-do me that this is aright of revision 0Illy, and, unless that is eiercised wheq the
F)j)))ERAF.
aEPORTER, voL 38.
'the officers rdr aetion hpon it, the' actronof the court' irl appr(l)ting'the,&C()ount is final; and 'it also seell1seqtially clear ,that where theaccotinting officers,whoha.ve the 'right of revision under the statute have accoUnt, by the coutt; and the accounts nave beenpaidjttnatisa final Rct,and the officer whose accounts are thus approved: paid cannot afterwards be: called upon for repayment. li'rOlll a.ny,rieW: I have' been 'able to take of this question, or that has been claim of cbuhl have no possible standing except upon'the ground of fraud or palpable mistake, and I cannot see how fraud or mistake: can be insisted on as to these attorney and sal fees, :lis:thestatutegivesthetinqualified right to the attorney's fee of $20 in each jury case, and the right to a counsel fee not exceeding $30 in each jhry case,-"-the amoullttobe allowed' for the counsel fees being left to :thejudgment or discretion ofsome one, either the jndge who tried the casei oT.'the accounting' officers, or each in turn; and when the discretion has"been exercised by thesy officers, and the acconnt paid, that must end the 'right of the government to question the right of the dis"It seems to me palpably unjust to the trict attorney to the plaintiff to refuse payment of these claims on the ground of this assertion of the right of set-off here set tip. The issue is found for the plaintiff. ' '" ,
HOYNE "'. UNITED STATES.
(District OOU1't,N. D. lllinoil.
April 29,,1889.)
lil;
Act Congo Aug. 4, 1886, does not take away the right of commissionerBto receive docket fees from and after its passage. but only excepts their-.payment olIt of the appropriation made by that act. Following Rand v. U. H., 86 Fed, aep, 67l; BeU v. Sam8, 35 Fed. Rep. 889. '
FEES.
,
Rev. St. U. S. § 1014, clothes the commissioner in each state with the generalpowers and authority- given to committinl(' magistrates thereof; and. as committing, magistrates 1D Illinois are by Rev. St. 111. c. 38, §§ 356.358, 367, not only authorized but required to issue warrants for the comm,itment to jail of persons charged with crime pending adjournments of the examination, in default, of bail, the circuit court commissioner in that state hiLs the same power,anQ.,is, entiped to $1 fAe for such awarranti as are alBo clerks of court by Rev. St. U. S. Ii l:l28. ' , 4. SAME-TRANSCRIPT 011' DOCKE'f. . ' , ' ,. ....' , Rev.' St. U. '1014,makes' it the duty of the, c'ommissioner, in' all Cases he hQlQ.s a, person to bail on a criminal charge, to return to the clerk , ofcourt,cppies, 'of the proc,ess aDd recognizlbicea of the wHnessesi as these would'be'useless witbout such a transcript of the docket entries as to make them dntelligible. the commissioner is entitled to fees for such tran· aCJ;ipy!i, accounting officers cannot assume arbitrarily that four folios therefor. There being no specific provisioll by act of congress, he shoold receive the reasonabltl fees allo'Wed bythestiLtelitatutes.
SAME.,...FEES,lI'OR WARRANTS.
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