Page images
PDF
EPUB

confer jurisdiction. (5 Dana, Ky., 11; 10 Mich., 338; 6 How. Pr., 198; 15 Pa. St., 18; 43 N. H., 114; Breedlove vs. Nicolet, 7 Pet., 433; Bank 8. Moss, 6 How., 31; Albers vs. Whitney, 1 Story, 310; Brush vs. Robbins, 3 McL., 486; Brown vs. Bartlett, 2 Ala., 29; Allen vs. Bradford, 3 Id., 281; Gibson vs. Wilson, 18 Id., 63; Harris vs. Billingsly, Id., 438; Harrison vs. State, 10 Mo., 686; Halley vs. Band, 1 Hen. & M., Va., 25; Morrison vs. Dapman, 3 Cal., 255; De Castro rs. Richardson, 25 Id., 49; Willson vs. McEvoy, Id., 169; Pool vs. McLeod, 9 Miss., 391; Russell vs. McDougall, 11 Id., 234; Copwood vs. Prewett, 30 Id., 206; S. P., 1 Ind., 516; Cobb vs. Wood, 1 Hawks, N. C., 95; Botkin vs. Commissioners, 1 Ohio, 375; Green vs. Dodge, 3 Id., 486; Reynolds vs. Stansbury, 20 Id., 348; Swift vs. Fairs, 11 Tex., 18; Wheeler vs. Goffe, 24 Id., 660; Lovejoy vs. Irelan, 19 Md., 56; Williams vs. Banks, Id., 524; Coelle vs. Lockhead, Hempst., 194; Pitman vs. Lowe, 24 Ga., 429; Atkins vs. Hinman, 7 Ill., 437; Elston vs. Dewes, 28 Id., 436; Satterlee rs. Pierce, 22 Ind., 116; Hamilton vs. Burch, 28 Id., 233; Haydel vs. Roussel, 1 La. Ann., 35; Wiley vs. Yale, 1 Metc., Mass., 553; Chamberlain rs. Crane, 4 N. H., 115; Rogers vs. Rogers, 1 Paige, N. Y., 188; Sprague vs. Jones, 9 Id., 395; S. F. Canal Co. vs. Gordon, 2 Abb., U. S., 484; Calk rs. Stribling, 1 Bibb, 128; Cook vs. Bay, 4 How., Miss., 485.) b. It cannot be said that, in the present case, the motion for a new trial kept the judgment within the control and jurisdiction of the court. If there was such a motion, and the copy of the record is complete, it was very informal, since no motion in form appears in the copy.

There are two modes of obtaining a new trial; one by motion, the other by petition. (Rev. Stats., 726, 987, 1087, 1088; Conkling's Treatise, 35, 450; 2 Abbott's Pr., 163, 199.)

The Revised Statutes provide as follow:

"SEC. 726. All of the said courts [of the United States] shall have power to grant new trials, in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law."

"SEC. 987. When a circuit court enters judgment in a civil action, either upon a verdict or on a finding of the court upon the facts, in cases where such finding is allowed, execution may, on motion of either party, at the discretion of the court, and on such conditions for the security of the adverse party as it may judge proper, be stayed fortytwo days from the time of entering judgment, to give time to file in the clerk's office of said court a petition for a new trial. If such petition is filed within said term of forty-two days, with a certificate thereon from any judge of such court that he allows it to be filed, which certificate he may make or refuse at his discretion, execution shall, of course, be further stayed to the next session of said court. If a new trial be granted, the former judgment shall be thereby rendered void."

c. If it must be presumed that a motion for a new trial was in fact filed, though it does not appear in the record, or if the entry as to the new trial appearing in the record be sufficient in a proper stage of the case, it could have given no authority to make a certificate of probable cause after the end of a term in which final judgment was entered. The entry of judgment disposes of a pending motion for a new trial, and there is no power to modify the effect of a final judgment after the judgment term. (Craig vs. Craig, 6 J. J. Marsh., 171; Young vs. State, 6 Ohio, 485; Arnold vs. Jones, Bee, 104; U. S. vs. Hastings, 5 Cr C. C., 115; 1 Sellon's Practice, 482, 497; Steph. Pl., 94; 2 Tidd. Pr., 8th ed., 913, 935; Duchess of Mazarene case, 2 Salk., 246; Cox vs. Kitchen, 1 Bos. & P., 238; Hilliard, New Trials, 1; Id., ch. 2, sec. 28; Id., ch. 5, sec. 1; Waterman, New Trials; Walker, Am. Law, 7th ed., 646; 1 Ga., 252; Caudler vs. Hammond, 23 Ga., 496; 1 Kelly's Ga. R., 253; 7 Price, 566; Spanagel rs. Dellinger, 34 Cal., 476; Buckner rs. Cowley, 1 T. B. Mon., 3; 13 B. Mon., 234; Harris rs. Ray, 15 Id., 628; 1 Fla., 197; 4 Ill., 406; 26 Id., 64; Hall vs. Nees, 27 Id., 411; McIntire vs. People, 28 Id., 514; 1 Iowa, 570; 19 Pick., 311; 10 Wis., 505; Prentiss rs. Danaher, 20 Id., 311; 6 Ind., 55; 11 Mo., 116; 2 Dallas, 118; 3 Tex., 17; 7 Dana, Ky., 253, 472; Bank vs. Ballocq, 19 La. An., 376; 6 Ala., 557.)

The statute provides specially what may be done after judgment. Then, a petition for a new trial is authorized. This shows that a motion is not the proper proceeding after judgment, unless followed by a peti. tion. (Arnold vs. Jones, Bee, 104; Scott vs. Hore, 1 Hughes, C. C., 167.)

d. The continuance of such motion and the overruling of it at a subsequent term give no authority to the court to do any act which will impair the force of the judgment. A valid certificate of probable cause would, under the statute, have that effect.

A final judgment is res judicata; its effect cannot be impaired while it remains in force.

If, on motion for a new trial, followed by a petition, the judgment be set aside at a subsequent term, the former judgment has no force. The statute says as to such case: "If a new trial be granted, the former judgment shall be thereby rendered void." (Rev. Stats., 987.)

The inference is, that if not so set aside, the former judgment stands in full force and is final. No statute or principle of the common law gives authority to modify the judgment when it is so permitted to stand in force.

4. It is unnecessary to inquire whether, after verdict and final judg

ment on an issue in form involving the question of probable cause, as in this case, the court could certify the existence of probable cause.*

If that part of the issue were immaterial, the court could so certify; if material, it could not, for it would be res judicata. (Apollon case, 9 Wh., 367; U. S. vs. Riddle, 5 Cr., 311; The Friendship, 1 Gall., 111; Stacey vs. Emery, 97 U. S., 643; U. S. vs. Sherman, 98 U. S., 565; 2 Hilliard, Torts, 224, 4th ed.; Leglise vs. Champante, 2 Str., 820; Gelston rs. Hoyt, 13 Johns., 561; s. c., 3 Wh., 246; Fiedler vs. Maxwell, 3 Blatch. C. C., 552; Carrington vs. Merchants' Ins. Co., 8 Pet., 495; Wood vs. U. S., 16 Id., 342; Clifton vs. U. S., 4 How., 242; U. S. vs. The Recorder, 2 Blatch. C. C., 119; Shattuck vs. Maley, 1 Wash. C. C., 245; The Malaga, 2 Am. L. J., 97; U. S. vs. One Sorrel Horse, 22 Vt., 655; The Palmyra, 12 Wh., 1; U. S. vs. The Reindeer, 14 Law Rep., 235.)

In Dunlap's Admiralty Practice, 267, it is said that "a seizure for a municipal forfeiture cannot be justified or excused upon the ground of probable cause, unless some statute creates and defines the exemption from damages." (Act March 2, 1799, ch. 22, sec. 71; act Feb. 24, 1807, ch. 19, 2 Stats., 422; act March 3, 1815, ch. 94, sec. 7; Charming Betsy, 2 Cr., 64; Shattuck rs. Maley, 1 Wash. C. C., 245; Burke rs. Trevitt, 1 Mason, C. C., 96; Gelston vs. Hoyt, 3 Wh., 314; The Apollon, 9 Id., 362; The Palmyra, 12 Id., 1; The Barossa, 1 Hagg. R., 75, n.)

Many cases define what is probable cause. (U. S. rs. Riddle, 5 Cr., 311; Locke rs. U. S., 7 Id., 339; The George, 1 Mason, 24; The Fame Stewart, Ad. R., 115; The Friendship, 1 Gall., 111; U. S. vs. Gay, 2 Id., 359.)

Dunlap says that the court, in deciding on the question or probable

* For the more recent cases against revenue officers, see Steamboat Co. rs. The Collector, 18 Wall., 478; Daudelet es. Smith, Id., 642; Pahlman rs. The Collector, 20 Id., 189; Stockdale rs. The Insurance Companies, Id., 323; Cary rs. The Savings Union, 22 Id., 38; Bailey vs. Clark, Id., 284; Bailey vs. Railroad Co., Id., 604; Blake rs National Banks, 23 Id., 307; Slack rs. Tucker & Co., Id., 321; Scholey rs. Rew, Id., 331; Arthur rs. Cumming et al., 91 U. S., 362; Pace rs. Burgess, 92 Id., 372; Barney rs. Watson et al., Id., 449; Clapp vs. Mason, 94 Id., 589; Erskine rs. Milwaukee, &c., Id., 619; Railroad Co. rs. Rose, 95 Id., 78; Bergdoll vs. Pollock, Id., 337; U. S. rs. Gillis, Id., 415; Arthur rs. Morrison, 96 Id., 108; Arthur rs. Unkart, Id., 118; Railroad Co. vs. Collector, Id., 594; Arthur vs. Moller, 97 Id., 365; Burgess rs. Salmon, Id., 381; Stoll rs. Pepper, Id., 438; Stacey vs. Emery, Id., 642; Andreae rs. Redfield, 98 Id., 225; Hartman vs. Bean, 99 Id., 393; Arthur vs. Herold, 100 Id., 75; Jones, administrator of Stockdale, rs. Blackwell, Id., 599; Wills rs. Russell, Id., 621; Improvement Company vs. Slack, Id., 648; Arthur vs. Dodge, 101 Id., 34; Wright rs. Blakeslee, Id., 174; Greenleaf vs. Goodrich, Id., 279; Powers vs. Comly, Id., 789; Burke rs. Trevitt, 1 Mason, C. C., 96; Mayo's U. S. Fiscal Department, 432. Injunction against revenue officers: High, Inj., 360-366; Darling rs. Gunn, 50 Ill., 424; Haight vs. Day, 1 Johns. Ch. R., 18; Le Roy vs. New York, 4 Id., 352; Attorney-General rs. Foundling Hospital, 4 Bro., 165; Mohawk vs. Clute, Paige, 384; Ritter vs. Patch, 12 Cal., 298.

As to actions against officers: Receiver's case, 1 Lawrence, Compt. Dec., 367. Among the cases as to "probable cause" are the following: 1 Cr., 1; 3 Id., 458; 7 Id., 339; 2 Wheat., 1, 18; 3 Id., 78; 9 Id., 362; 12 Id., 1; 3 Pet., 318; 16 Id., 342; 3 How., 197, 266; 4 Id., 251; 13 Id., 498.

cause, "would take into consideration no other facts than those which appeared at the trial of the cause." (Ad. Prac., 268; The Fame, Stewart, Ad. R., 112.)

No statute protects an internal-revenue officer from suit or judgment by reason of probable cause; but he is protected from execution when a certificate thereof is made in pursuance of section 989 of the Revised Statutes.

IV. There can be in the present case, under section 3220 of the Revised Statutes, no payment of the judgment on this application.

1. It is a sufficient objection to its payment that the defendant in the judgment has not applied for it. Section 3220 provides for repayment to an officer who has paid a judgment recovered against him. It differs from section 989, which, on certificate of probable cause, prevents the issue of execution against the officer, and provides for payment of the judgment to the plaintiff.

It has been held by my immediate predecessor that absolute payment by the officer is not essential, in order to authorize him to apply for relief under section 3220. He is not required to do the vain or useless act of submitting to execution or making payment.

But the application for payment under this section must come from him. If he does not ask for relief, no party can do so on his behalf. If he is not so aggrieved as to desire and seek redress, the Government will not thrust relief on him. Volenti non fit injuria.

2. It is a sufficient objection also to payment under this section that it does not appear that the Attorney of the United States was notified or knew of the pendency of the suit.

Section 771 of the Revised Statutes makes it the duty of the attorney of the United States to appear and defend in "all suits against collectors or other officers of the revenue." There can be no valid claim, since the only evidence of the merits of a right to a refund or repayment to the claimant is the record of the judgment. This judgment can give no such right, because it is void as against the Government. If it be assumed that the allowance of the Commissioner of Internal Revenue is primâ facie evidence of the right of the claimant to payment, yet this prima facie right is overthrown as founded on "mistake," when it is shown that the sole evidence on which the claim rests is a nullity. Ex nihilo, nihil fit. This conclusion is strengthened by the fact that "the jury found Atkins was not liable, although the law (Rev. Stats., sec. 3148) distinctly declares that the collector shall be held responsible for every act done by the deputy in the performance of his official duty. This finding, unexplained, proves that the trespass was

not committed by Blocker while acting as deputy, but, as the declaration alleges, maliciously and without any reasonable and probable cause.""

The claim is, in fact, not for a refund of taxes erroneously assessed, but for damages in tort for a trespass.

3. It might be urged with some force that the certificate of probable cause, required by section 989, is essential; that section 771, 989, and 3220, are parts of one system; that they are in pari materia; that they are to be construed together; hence that the certificate is required; (U. S. vs. Bowen, 100 U. S., 513; Audit case, 1 Lawrence, Compt. Dec., 37, 44, n; U. S. vs. Collier, 3 Blatch. C. C., 325; Black vs. Scott, 2 Brock., 325; Patterson vs. Winn, 11 Wheat., 385; The Harriet, 1 St., 251; U. S. vs. Hewes, Crabbe, 307; Dubois vs. McLean, 4 McL., 489;) and that the general words in section 989 apply to all judgments which fairly fall within them, pursuant to the maxim, Generalis regula generaliter est intelligenda.

Section 3220 is to be read in the light of its history. (Bender's case, 1 Lawrence, Compt. Dec., 331, 346; Blake vs. Nat. Banks, 23 Wall., 307.)

The origin of it is found in the act of March 3, 1863, section 12, (12 Stats., 741,) copied in part into the act of June 30, 1864, section 44, (13 Stats., 240,) and re-enacted in the act of July 13, 1866. (14 Stats., 111.) It is evident that it originally contemplated repayment "to collectors or deputy collectors," against whom any judgment had been rendered, who had been compelled to pay the same. It authorized payment" by drafts drawn on collectors of internal revenue" by "the Commissioner of Internal Revenue."

The act of March 3, 1865, section 3, (13 Stats., 483,) took away this power to draw drafts or make payment, although the act of July 13, 1866, (14 Stats., 111,) in its words, reasserted the right to repayment, without the means of making it, by draft on the collector.

The Commissioner of Internal Revenue does not literally "repay" the judgment, as section 3220 would seem to direct; but he allows it sub modo as a claim, which, like all claims payable out of the Treasury, is to be audited, stated, and certified by the proper accounting officers. (Flack's case, 1 Lawrence, Compt. Dec., 186; Savings-Bank case, Id., 194; Davis's case, Id., 258.)

Heretofore it seems to have been the usage, upon application of the internal-revenue officer against whom a judgment had been rendered, to make payment in this manner, under section 3220, without requiring a

« PreviousContinue »