B-130208, FEB. 5, 1957

B-130208, FEB. 5, 1957

TO MR. R. B. JONES, ATTORNEY AT LAW:

YOUR LETTER OF DECEMBER 20, 1956, TRANSMITTING A POWER OF ATTORNEY FROM MR. N. E. KIRBY APPOINTING YOU AS ATTORNEY TO REPRESENT HIM IN REGARD TO HIS CLAIM FOR THE PROCEEDS OF CHECK NO. 3,203,123 IN THE AMOUNT OF $6,739.20, AND REQUESTING A REPLY TO YOUR INQUIRY OF OCTOBER 26, 1956, AS TO THE STATUS OF THIS MATTER, HAS BEEN FORWARDED TO US BY THE TREASURER OF THE UNITED STATES.

BRIEFLY, A CHECK IN THE AMOUNT OF $6,729.20 WAS DRAWN TO THE ORDER OF N. E. KIRBY BY THE UNITED STATES NAVY DEPARTMENT BUT, APPARENTLY THROUGH INADVERTENCE, THE CHECK WAS SENT TO THE ADDRESS OF HIS ESTRANGED WIFE IN CALIFORNIA, PURSUANT TO HER REQUEST. SHE ENDORSED HER HUSBAND'S NAME TO THE CHECK AND NEGOTIATED IT AT A BRANCH OF THE BANK OF AMERICA. HOWEVER, SINCE A STOP-ORDER HAD BEEN PLACED AGAINST THE CHECK, PAYMENT THEREOF WAS DECLINED BY THE FEDERAL RESERVE BANK OF CLEVELAND AND THE CHECK WAS FORWARDED TO THE TREASURER OF THE UNITED STATES. SUBSEQUENTLY, THE TREASURER'S FILE IN THE MATTER WAS FORWARDED TO OUR OFFICE FOR CONSIDERATION OF THE CONFLICTING CLAIMS OF THE PAYEE AND MRS. KIRBY FOR THE CHECK. INCLUDED THEREIN WAS AN ORDER DATED AUGUST 16, 1956, FORWARDED BY MRS. KIRBY'S ATTORNEYS, FROM THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SONOMA IN THE CASE OF ETHEL KIRBY V. N. E. KIRBY, NO. 38759, A DIVORCE PROCEEDING. THE ORDER DIRECTS THAT THIS CHECK BE PAID TO, AND THE PROCEEDS THEREOF BE DEPOSITED WITH, THE CLERK OF THE COURT FOR DISTRIBUTION TO CERTAIN CREDITORS OF KIRBY, TO HIS WIFE'S ATTORNEYS AS FEES IN THE DIVORCE ACTION AND AS SECURITY TO ASSURE SUPPORT PAYMENTS TO HIS WIFE AND CHILDREN AS PRESCRIBED BY THE ORDER. SINCE THE CHECK WAS NOT WITHIN THE JURISDICTION OF THE COURT AT THE TIME THE ORDER WAS RENDERED, AND THE RECORD BEFORE US DOES NOT CLEARLY SHOW WHETHER MR. KIRBY WAS PROPERLY SERVED WITH PROCESS AND WITHIN THE COURT'S JURISDICTION, SOME QUESTION ARISES AS TO THE EFFECT TO BE GIVEN THE ORDER. BOTH MR. KIRBY AND HIS WIFE'S ATTORNEYS HAVE BEEN REQUESTED TO FURNISH INFORMATION WHICH IT IS HOPED WILL ENABLE US TO RESOLVE THE CONFLICTING CLAIMS AND UPON RECEIPT THEREOF THE MATTER WILL BE GIVEN PROMPT FURTHER CONSIDERATION.

IT IS NOT NECESSARY FOR YOUR CLIENT TO EXECUTE ANY FURTHER CLAIM FORMS AT THIS TIME. HOWEVER, INFORMATION AS TO WHETHER MR. KIRBY WAS PROPERLY SERVED WITH PROCESS IN CONNECTION WITH THE COURT ORDER OF AUGUST 16, 1956, WHETHER HE APPEARED IN SUCH ACTION AND WHETHER HE WAS WITHIN THE JURISDICTION OF THE CALIFORNIA COURT WOULD BE HELPFUL IN FINAL DISPOSITION OF THE MATTER. FOR YOUR INFORMATION COPIES OF OUR LETTERS OF JANUARY 22, 1957, TO FITZGERALD AND FOSTER, MRS. KIRBY'S ATTORNEYS, AND TO MR. KIRBY ARE ENCLOSED.