Petitioner is the sheriff who levied the attachments against
accounts of German nationals "frozen" under Executive Orders Nos.
8785 and 8389, which were involved in the two preceding decisions
(
Zittman. v. McGrath, ante pp.
341 U. S. 446,
341 U. S. 471).
His claim for his fees was denied by the courts below incidentally
to their denial of the rights asserted by the attaching
creditors.
Held: the judgment is reversed insofar as the fees of
the sheriff relate to the accounts to which the Custodian was held
not entitled to possession, and affirmed insofar as they relate to
the accounts to which the Custodian was held entitled to possession
-- without prejudice to certain rights of the sheriff as indicated
in the opinion. Pp. 475-478.
182 F.2d 349, affirmed in part and reversed in part.
Petitioner's claim to his fees as sheriff were denied by the
courts below incidentally to the denial of the rights asserted by
the attaching creditors. 82 F. Supp. 740; 182 F.2d 349. This Court
granted certiorari. 340 U.S. 882.
Reversed in part and affirmed
in part, p.
341 U. S.
478.
MR. JUSTICE JACKSON delivered the opinion of the Court.
This case is a dependent companion to the four preceding cases,
Zittman v. McGrath, Nos. 298 and 314,
ante, p.
341 U. S. 446, and
Nos. 299
Page 341 U. S. 476
and 315,
ante, p.
341 U. S. 471. The
petitioner is the sheriff who levied the attachments involved in
those cases. He was impleaded by the Custodian as a party
defendant, and his amended answer, after adopting the position of
his codefendants and urging dismissal of the Custodian's petition,
as an alternative asked:
"That, if the Court determines that the petitioner is entitled
to possession of the property attached by the Sheriff pursuant to
the Zittman and McCarthy attachments, any decree to be entered
thereon should provide for payment of the Sheriff's statutory
poundage fees arising from said attachments. . . ."
His claim was denied by the courts below incidentally to their
denial of the rights asserted by the attaching creditors. The
District Court said only:
"Because the attachments by the sheriff did not transfer any
right, title or interest in the blocked property, his application
for payment of his fees by the Custodian must be denied. [
Footnote 1]"
The Court of Appeals affirmed, per curiam, on the ground stated
by the District Court. [
Footnote
2]
The precise status of the sheriff's claims under New York law,
if they have been settled, is not made clear to us by the record,
and, under the circumstances of this case, we cannot presume to
say, nor could the District Court, what the New York courts would
allow to the sheriff. [
Footnote
3] Nor can we ascertain from the record the extent
Page 341 U. S. 477
to which his fees have been or may be included in the judgments
dealt with in the preceding cases. The record does not disclose
that they have been allowed or fixed by the judge who issued the
attachment warrants. Although the sheriff has never had the
attached funds in his possession, there is authority that such lack
of physical possession does not deprive him of his right to
poundage. [
Footnote 4]
Furthermore, the uncertain values of the levies made, in view of
their nature as defined in
Commission for Polish Relief v.
Banca Nationala a Rumaniei, 288 N.Y. 332, 43 N.E.2d 345, and
the inability of the sheriff to seize the attached funds, make the
determination of the sheriff's fees a matter for the appropriate
New York state court. Also, whether those fees constitute separate
claims or are taxable costs which become part of the judgments to
which they relate is for state court determination.
We have no doubt that, in one form or another, the proper fees
of the sheriff should be treated by federal law in the same manner
as the attachments and judgments to which they appertain.
Therefore, insofar as the accounts held by the Chase Bank were
concerned, the Custodian was not entitled to a declaration that the
sheriff's fees did not constitute a valid claim. The Custodian
Page 341 U. S. 478
sought to such declaration where the accounts held by the
Federal Reserve Bank were concerned, but only asserted that the
sheriff's claims could not defeat his right of possession. To
preserve the paramount authority of the Federal Government over the
frozen funds, we hold they could not. Accordingly, the judgment is
reversed insofar as the fees of the sheriff relate to the
attachments of the accounts held by the Chase Bank and affirmed
insofar as they relate to the accounts held by the Federal Reserve
Bank.
This, however, is without prejudice to the right of the sheriff
to have the New York courts determine the state law status of his
fees, and, in the case of the attachments of the accounts held by
the Chase Bank, to have them, as fixed, included in the judgments
or otherwise given the same position as such judgments. And no
prejudice is intended to his rights, in the case of the attachments
of the accounts held by the Federal Reserve Bank, to present his
fee claims, as settled by the New York courts, to the Custodian in
the same manner and subject to the same procedures as the judgment
creditors in Nos. 299 and 315.
It is so ordered.
MR. JUSTICE CLARK took no part in the consideration or decision
of this case.
[
Footnote 1]
82 F. Supp. 740, 742-743.
[
Footnote 2]
182 F.2d 349.
[
Footnote 3]
The judgment creditors were entitled to costs, of course, when
judgment was rendered in their favor. N.Y.Civil Practice Act, §
1470(11). They were entitled to include in their bills of costs,
and hence in their judgments, necessary disbursements, which may
include certain sheriff's fees.
Id., § 1518. For each
attachment levy made, the sheriff is entitled to a specified
amount,
". . . and also such additional compensation for his trouble and
expenses in taking possession of and preserving the property as the
judge issuing the warrant . . ."
allows.
Id., § 1558(2). There are also other fees for
inventory, mileage, and poundage upon the value of the property
attached.
Ibid. If execution is issued, additional fees
accrue, and a schedule of percentages
"For collecting money by virtue of an execution, a warrant of
attachment, or an attachment for the payment of money in an action
or a special proceeding . . ."
is provided.
Id., § 1558(7). Where "the warrant of
attachment is vacated or set aside by order of the court," the
sheriff is entitled to poundage and to such additional compensation
for taking and preserving the property as the judge who issued the
warrant may allow, and the court or judge may issue an order
"requiring the party at whose instance the attachment is issued to
pay the same to the sheriff."
Id., § 1558(18).
[
Footnote 4]
Distillers Factors Corp. v. Country Distillers
Products, 81 N.Y.S.2d 857, 859.