Carpenter v. United States

U.S. Circuit Court for the District of Southern Ohio

Carpenter v. United States

42 F. 264, 6 Ohio F. Dec. 565, 1890 U.S. App. LEXIS 2149

CourtU.S. Circuit Court for the District of Southern Ohio

DecidedApril 8, 1890

StatusPublished

This text of 42 F. 264 (Carpenter v. United States) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Southern Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Carpenter v. United States, 42 F. 264, 6 Ohio F. Dec. 565, 1890 U.S. App. LEXIS 2149 (circtsdoh 1890).

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Opinion

Sage, J.

If this case is to be considered as sounding in tort, tbe demurrer to the petition must be sustained for the reason that the act of March 3, 1887, under which it is brought, excludes from the jurisdiction of the court cases sounding in tort. If it is to be considered as an action upon an implied assumpsit, the demurrer must be sustained for •the reason that the right accrued in 1873, and this action was brought in 1889, whereas the act of March 3, 1887, makes it a condition precedent to the right to sue that the action shall be brought within six years after the right accrued for which the claim is made. It is true that the petition alleges the material facts, of the action brought by the owner of the flat-boat against the plaintiff, and a notification to the United States attorney in the city of Pittsburgh, and the further fact that he assumed the defense of said suit. It is also alleged that Col. Merrill, the plaintiff’s superior officer, was by him notified of said suit. The petition sets forth, also, that a judgment was recovered against the plaintiff, which he was compelled to and did pay on the 6th day of May, 1886, which was within six years of this suit. But, if we are to treat the suit as upon an implied assumpsit, the claim accrued against the United States when its officer took possession of and used the flat-boat, in 1873, and was not postponed until 1886, when the plaintiff was compelled to pay the claim made against him. The owner of the'flat-boat looked, as he had a right to do, to the plaintiff. The plaintiff had the right either to treat the taking of the boat by the government officer as tortious, and sue him individually, or, waiving the tort, make his claim against the government for the use of the flat-boat. The right of the plaintiff to assert his claini for that use did not depend upon the recovery against him by the owner of the flat-boat.

The case is a hard one, but the plaintiff’s only means of redress is through an appeal to congress. The demurrer is sustained, and the petition will be dismissed.

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Sage, J.

If this case is to be considered as sounding in tort, tbe demurrer to the petition must be sustained for the reason that the act of March 3, 1887, under which it is brought, excludes from the jurisdiction of the court cases sounding in tort. If it is to be considered as an action upon an implied assumpsit, the demurrer must be sustained for •the reason that the right accrued in 1873, and this action was brought in 1889, whereas the act of March 3, 1887, makes it a condition precedent to the right to sue that the action shall be brought within six years after the right accrued for which the claim is made. It is true that the petition alleges the material facts, of the action brought by the owner of the flat-boat against the plaintiff, and a notification to the United States attorney in the city of Pittsburgh, and the further fact that he assumed the defense of said suit. It is also alleged that Col. Merrill, the plaintiff’s superior officer, was by him notified of said suit. The petition sets forth, also, that a judgment was recovered against the plaintiff, which he was compelled to and did pay on the 6th day of May, 1886, which was within six years of this suit. But, if we are to treat the suit as upon an implied assumpsit, the claim accrued against the United States when its officer took possession of and used the flat-boat, in 1873, and was not postponed until 1886, when the plaintiff was compelled to pay the claim made against him. The owner of the'flat-boat looked, as he had a right to do, to the plaintiff. The plaintiff had the right either to treat the taking of the boat by the government officer as tortious, and sue him individually, or, waiving the tort, make his claim against the government for the use of the flat-boat. The right of the plaintiff to assert his claini for that use did not depend upon the recovery against him by the owner of the flat-boat.

The case is a hard one, but the plaintiff’s only means of redress is through an appeal to congress. The demurrer is sustained, and the petition will be dismissed.

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Bluebook (online)

42 F. 264, 6 Ohio F. Dec. 565, 1890 U.S. App. LEXIS 2149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carpenter-v-united-states-circtsdoh-1890.