United States v. Calogera

183 F. 909, 1910 U.S. App. LEXIS 5771

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: December 22, 1910
• Status: Published

Opinion

WARD, Circuit Judge.

Goods imported by one Calogera were assessed for duties by the collector at the rate of 15 cents per gallon. The importer paid under protest, and appealed to the Board of General Appraisers, which reversed the decision of the collector and held the goods to be duty free. Thereupon the collector applied to the Circuit. Court of the United States for this district to review the decision of /the board, which court affirmed it. A reliquidation of the duties shows the sum of $5,136.35 to be due by the United States to’ Calogera. ’ • "

Brown & Gerry acted as Calo'gera’s attorneys throughout, under an agreement whereby they were to receive one-half of whatever was recovered. They now petition this court in the original proceeding for an order directing the collector to pay over to them one-half the sum in his hands by virtue of this agreement. But the' jurisdiction of the court in that matter was appellate only, and has been completely exercised. There is no suit now pending, and there never was any money judgment, nor any fund in the hands of the court, or of any officer of the court. The petition must be regarded as an original proceeding asking this court to pass upon the rights of Brown & Gerry to a lien upon Calogera’s funds, without his presence, and to summarily direct an administrative officer of the United States to pay over money in his hands to a third party. No authority is shown for such a proceeding.

The prayer of the petition is denied.