meruit for services performed by him for Interhandel which he estimates have a reasonable value of $ 150,000.
He asserts that Mr. Charles E. Wilson was to receive no compensation for his services and the only compensation which Interhandel undertook to pay was compensation to him, movant Schmitz; that Mr. Wilson sought to carry out his functions as trustee after accepting his trust powers on May 23, 1960, but in 1961 Interhandel directed the trustee to suspend negotiations with the United States Government, and in November 1962 Mr. Wilson resigned his trusteeship, and that the activities of the trustee, Mr. Wilson, contributed to the disposition of the Government to enter into a settlement with Interhandel. Interhandel disputes these claims in their entirety, and contends that movant stands before the Court as a plaintiff seeking an in personam judgment against a foreign corporation without service of process.
This movant has come into this case for the first time by the filing of the above described motion after the plaintiff and defendants have entered into a Stipulation of Settlement, and the sole question before the Court is whether he may now litigate in this action his claims against Interhandel.
At the outset, it might well be questioned whether his activities, as above set forth, which would seem to be those of a 'finder' as it is colloquially described, come within the purview of compensable services recognized by the Trading With The Enemy Act, but it is not necessary to reach a conclusion on that point, for the following reasons:
Sec. 9(a) of the Trading With The Enemy Act, provides that any person not an enemy, or ally of an enemy, claiming interest in vested property may file a claim or bring a suit for the return of the property. This is the exclusive remedy provided by the Statute to make a claim for an interest in vested property ( Kennedy v. Union & New Haven Trust Company, 2 Cir., 296 F.2d 655), and this action was brought under Sec. 9(a). Movant had no interest in the property now held by the Attorney General at the time of vesting, and could not have obtained any interest therein from plaintiff thereafter, because upon vesting the Attorney General 'succeeds to all rights in the property.' Commercial Trust Company of New Jersey v. Miller, 262 U.S. 51, 56, 43 S. Ct. 486, 67 L. Ed. 858; Cummings v. Deutsche Bank, 300 U.S. 115, 57 S. Ct. 359, 81 L. Ed. 545. He therefore, can not be a party plaintiff in this action, and the Court lacks jurisdiction to entertain his claim.
Moreover, his claim to intervention, if based upon a lien on the vested property, (and the cases relied on by movant in large part are based upon a lien) is specifically barred by § 9(f) of the Trading With The Enemy Act, which provides that the property vested 'shall not be liable to lien, attachment, * * * or subject to any order or decree of any court.' In construing this Section the Court of Appeals for this jurisdiction in Von Opel v. Uebersee Finanz Korporation, supra, held in a case involving a claim by a statutory receiver to recover an interest in vested property that Congress had made no provision for the disposition of a suit of that kind in the Trading With The Enemy Act, that she could not intervene, and that litigation under the Act is limited to that which the Act permits. This case is likewise authority for the conclusion reached in the next preceding paragraph. Also, in Berger v. Ruoff, supra, an action brought by an attorney to intervene to enforce a lien for his fee for services rendered to a claimant under this Act, a much stronger case than movant's, where the plaintiff came clearly within the purview of the class entitled to fees, the Court held that the language of this Section forbade the impressing of any lien on the property.
The Stipulation of Settlement provides that after certain actions shall have been taken, plaintiff and defendants will present to the Court a consent judgment, or if such judgment is not entered, plaintiff and defendants will file dismissals of the complaint and counterclaims, respectively, with prejudice. No judgment has been presented. Previously this Court has questioned its necessity and propriety, has indicated its predisposition not to enter one, and has suggested to counsel that all that is necessary for the termination of this action of record is the filing of praecipes of dismissal as provided in the Stipulation of Settlement. Indeed, the Stipulation of Settlement was amended to include this alternative method of termination at the Court's suggestion. Therefore, the entry of a judgment in the future cannot be assumed as a premise.
The Stipulation of Settlement provided that certain actions were to be taken by the parties. Among them was a provision that Interhandel will submit satisfactory evidence as required by § 20 of the Trading With The Enemy Act, that the aggregate of all fees does not exceed the limitation imposed by this Act. Whether there is any necessity for such provision in the Stipulation has likewise been questioned by the Court, inasmuch as the settlement which has been entered into is an out-of-court, inter-party disposition of the case without approval or disapproval by the Court. Sec. 20, supra, provides that 'no property or interest or proceeds shall be returned under this Act * * * nor shall any payment be made or judgment awarded, * * * unless satisfactory evidence is furnished to the President or such officer or agency as he may designate, or the Court, as the case may be, that the aggregate of the fees to be paid to all agents, attorneys at law or in fact, or representatives, for services rendered in connection with such return or payment or judgment does not exceed 10 per centum of the value of such property or interest or proceeds or of such payment.'
Absent a judgment, as to which, as above stated, this Court questions the necessity and propriety, it would appear that satisfactory evidence referred to should be furnished to the President or such officer or agency as he may designate and not to the Court. If a judgment should be entered, then, and only then, before its entry, the Court under this § 20 must have satisfactory evidence that the fees do not exceed the maximum amount.
There would appear to be no reason or basis for the submission of such evidence unless the Court is called upon to take some action in connection with the case, or unless the parties wish to file such evidence for record purposes. There is no provision other than the one above referred to relating to fees, except in the case of a claim for an amount in excess of the maximum. Then, upon petition, the Court in the District where claimant resides is authorized to allow an amount in excess of the maximum upon a finding of special circumstances of unusual hardship. No such claim is before the Court, and movant does not satisfy the residential requirements. Sec. 20 is not a provision for the judicial determination of fees, as movant seems to assume, but is a statute to protect the owner of seized property from unreasonable or extortionate charges in seeking its recovery. ( Kroll v. McGrath, 91 U.S.App.D.C. 172, 199 F.2d 187.) It, therefore, provides no basis for intervention.
Movant also claims that he should be allowed to intervene either as of right or permissively, under Rule 24(a) and (b), Fed.R.Civ.P. For the reasons above set forth he cannot intervene as a plaintiff in this action, and it would serve no useful purpose to point out the many other obstacles in his path to such intervention, as they are patently apparent in the language of the rule itself and in the authorities construing it. Neither is there any merit to his contention that he should be joined as an indispensable party pursuant to § 19(a), Fed.R.Civ.P.
For all these reasons the motion of Robert A. Schmitz must be denied.