Opinion
Submitted April 11, 1882
Decided May 2, 1882
Hamilton Wallis for appellant.
De Witt C. Brown for respondents. Armour C. Anderson for respondent Stimmel.
No suit can be brought against the United States without the consent of Congress. ( Marriott v. Brune, 18 How. U.S. [Curtis] 285.) But the United States may sue its debtor in any court of law having jurisdiction of the subject matter. (Ib.)
The attorney of the United States for the district in which the action is brought is the proper officer to bring such action. (U.S.R.S., § 771.)
The United States while nominally a defendant is in fact made a plaintiff by the order appealed from. It comes in not to defend an action brought against it, but as a claimant to the fund in question.
The next and more difficult question raised by the appeal is, whether the United States can, in the present action pending in the State court, enforce its claim to the fund in question. Under the decisions of this court it certainly cannot. ( Thurber v. Blanck, 50 N.Y. 80.) It has no judgment against its alleged debtor, Harrison Johnston, the former owner of the bond and mortgage, and may never have. Had the attachment been issued in an action pending in the courts of this State, a different question would be presented. But the action in which the attachment was issued was pending in the Circuit Court of the United States, a court not bound to follow the decisions of a State court.
Such court may hold that the United States, by service of the attachment, did acquire a lien upon the debt. But by voluntarily appearing in a State court as a claimant to a fund in such court the United States subjects itself to the jurisdiction of such court, and like any other litigant will be bound by its decision. It is insisted that as the plaintiff's action is against other defendants, upon whom the warrant of attachment had not been served, it should be permitted to proceed against them as if no attachment had been issued. The liability of the several defendants is for the same debt; payment made by any one of them will satisfy the plaintiff's claim against all. The debt has been paid, by paying the amount with costs of the action into court.
The only remaining question to be determined is, whether the plaintiff or the United States own the fund, and in this question none of the former defendants have now any interest.
The order should be affirmed, with costs.
All concur.
Order affirmed.