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B-130208, APR. 3, 1957

B-130208 Apr 03, 1957
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WERE INADVERTENTLY MAILED BY THE DEPARTMENT OF THE NAVY TO HIS ESTRANGED WIFE. 451 WAS PAID ON JULY 6. IT IS REPORTED NO RECOVERY ACTION THEREON HAS BEEN TAKEN. 123 WAS DECLINED BY THE FEDERAL RESERVE BANK OF CLEVELAND ON AUGUST 2. THE CHECK WAS FORWARDED TO THE TREASURER OF THE UNITED STATES. 123 WAS COMMUNITY PROPERTY UNDER THE LAWS OF THE STATE OF CALIFORNIA. THAT UPON DISSOLUTION OF THE MARRIAGE SHE WAS ENTITLED TO ONE-HALF THEREOF AS COMMUNITY PROPERTY AND THAT A LIEN SHOULD BE IMPRESSED UPON MR. THE MATTER WAS REFERRED HERE FOR CONSIDERATION AND ADVICE. INSOFAR AS IS HERE PERTINENT. NO PART THEREOF IS PRESENTLY ON DEPOSIT IN THE BANK OF AMERICA. SINCE THE UNITED STATES GOVERNMENT WAS NOT A PARTY TO THIS SUIT.

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B-130208, APR. 3, 1957

TO MRS. IVY BAKER PRIEST, TREASURER OF THE UNITED STATES:

LETTER DATED OCTOBER 25, 1956, CC-465-WJH, FROM THE SPECIAL ASSISTANT TREASURER, TRANSMITTED TO OUR CLAIMS DIVISION THE CLAIM OF N. E. KIRBY, 516--- 56TH STREET, SOUTH, BIRMINGHAM, ALABAMA, FOR THE PROCEEDS OF NAVY RETIREMENT CHECKS NOS. 3,171,451, DATED JUNE 30, 1956, FOR $2.48 AND $3,203,123, DATED JULY 2, 1956, FOR $6,739.20, BOTH DRAWN TO HIS ORDER BY L. A. CAMPBELL, SYMBOL 724, TOGETHER WITH THE FILE PERTAINING THERETO.

THE RECORD DISCLOSES THAT THESE CHECKS, BEARING MR. KIRBY'S BIRMINGHAM ADDRESS ON THEIR FACES, WERE INADVERTENTLY MAILED BY THE DEPARTMENT OF THE NAVY TO HIS ESTRANGED WIFE, ETHEL KIRBY, AT 1750 H STREET, EUREKA, CALIFORNIA, UPON RECEIPT OF A LETTER FROM HER REQUESTING THAT THEY BE SENT TO THAT ADDRESS. MRS. KIRBY, WITHOUT AUTHORIZATION OF THE PAYEE ENDORSED HIS NAME ON BOTH CHECKS AND NEGOTIATED THEM, RECEIVING CASH FOR CHECK NO. 3,171,451, AND DEPOSITING $6,339.20 OF THE PROCEEDS OF CHECK NO. 3,203,123 IN A CHECKING ACCOUNT AT THE BANK OF AMERICA N.T. AND S.A., HENDERSON CENTER BRANCH NO. 704, EUREKA, CALIFORNIA, TAKING THE REMAINING $400 IN CASH. CHECK NO. 3,171,451 WAS PAID ON JULY 6, 1956, AND IT IS REPORTED NO RECOVERY ACTION THEREON HAS BEEN TAKEN. PAYMENT ON CHECK NO. 3,203,123 WAS DECLINED BY THE FEDERAL RESERVE BANK OF CLEVELAND ON AUGUST 2, 1956, AND THE CHECK WAS FORWARDED TO THE TREASURER OF THE UNITED STATES. SINCE THE BANK OF AMERICA HONORED A CHECK FOR $50 DRAWN BY MRS. KIRBY AGAINST THE CHECKING ACCOUNT ESTABLISHED WITH PART OF THE PROCEEDS OF CHECK NO. 3,203,123, PRIOR TO NOTIFICATION OF DECLINATION OF PAYMENT, IT APPEARS ON THE PRESENT RECORD THAT THE BANK SUSTAINED A LOSS OF $450 IN THE MATTER.

MR. KIRBY HAS SUBMITTED CLAIMS FOR THE PROCEEDS OF BOTH CHECKS. MRS. KIRBY HAS ACKNOWLEDGED THAT SHE ENDORSED AND NEGOTIATED THESE CHECKS WITHOUT AUTHORIZATION FROM THE PAYEE. IN LETTER OF JULY 11, 1956, TO THE NAVY DEPARTMENT, FITZGERALD AND FOSTER, ATTORNEYS FOR MRS. KIRBY, URGED THAT CHECK NO. 3,203,123 WAS COMMUNITY PROPERTY UNDER THE LAWS OF THE STATE OF CALIFORNIA; THAT UPON DISSOLUTION OF THE MARRIAGE SHE WAS ENTITLED TO ONE-HALF THEREOF AS COMMUNITY PROPERTY AND THAT A LIEN SHOULD BE IMPRESSED UPON MR. KIRBY'S ONE-HALF TO INSURE PAYMENT OF THE AMOUNTS PROVIDED IN THE DIVORCE DECREE FOR SUPPORT OF THEIR CHILDREN. SUBSEQUENTLY, MRS. KIRBY'S ATTORNEYS FORWARDED TO YOU A CERTIFIED COPY OF AN ORDER DATED AUGUST 16, 1956, ENTITLED ORDER MODIFYING INTERLOCUTORY DECREE OF DIVORCE AND ORDER FOR DEPOSIT OF SECURITY, ISSUED BY 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. 38749. IN VIEW OF THE CONFLICTING CLAIMS INVOLVED, THE MATTER WAS REFERRED HERE FOR CONSIDERATION AND ADVICE.

THE COURT ORDER PROVIDES, INSOFAR AS IS HERE PERTINENT, THAT THE DEFENDANT N. E. KIRBY DEPOSIT WITH THE CLERK OF THE COURT THE SUM OF $6,739.20 (THE AMOUNT OF CHECK NO. 3,203,123); THAT STATED PORTIONS OF SUCH AMOUNT SHALL BE MADE AVAILABLE FOR CERTAIN CREDITORS OF DEFENDANT N. E. KIRBY, FOR PAYEES OF FICTITIOUS NEGOTIABLE INSTRUMENTS DRAFTED BY DEFENDANT, AND AS FEES TO CERTAIN ATTORNEYS, ALL SUCH PERSONS BEING REQUIRED TO OBTAIN AN ORDER OF THE COURT TO RECEIVE PAYMENT; AND THAT THE BALANCE OF THE DEPOSITED SUM SHALL REMAIN ON DEPOSIT WITH THE COUNTY CLERK AS SECURITY FOR PAST AND FUTURE SUPPORT AND MAINTENANCE OF THE PLAINTIFF AND THE MINOR CHILDREN OF THE PARTIES AS ORDERED BY THE COURT. THE ORDER FURTHER PURPORTS TO REQUIRE ANY AND ALL AGENTS, DEPOSITORIES, OR SERVANTS OF THE DEFENDANT TO DEPOSIT WITH THE CLERK OF THE COURT ANY SUMS DUE OR TO BECOME DUE AS AND FOR SEVERANCE PAY FROM THE UNITED STATES NAVY TO THE DEFENDANT. IT ORDERS THE BANK OF AMERICA,HENDERSON CENTER BRANCH, EUREKA, CALIFORNIA, TO PAY ALL SUMS ON DEPOSIT REPRESENTING THE PROCEEDS OF CHECK NO. 3,203,123, TO THE CLERK OF THE COURT; AND, IF SAID CHECK HAS NOT CLEARED, IT ORDERS THE UNITED STATES GOVERNMENT TO CLEAR SAME FOR DEPOSIT TO SAID BANK OF AMERICA, AND THE BANK OF AMERICA THEREUPON TO DEPOSIT THE AMOUNT THEREOF WITH THE CLERK OF THE COURT.

PAYMENT OF CHECK NO. 3,203,123, HAVING BEEN DECLINED ON AUGUST 2, 1956, PURSUANT TO THE STOP PAYMENT ORDER, NO PART THEREOF IS PRESENTLY ON DEPOSIT IN THE BANK OF AMERICA. SINCE THE UNITED STATES GOVERNMENT WAS NOT A PARTY TO THIS SUIT, SINCE IT IS NOT AN AGENT, DEPOSITORY, OR SERVANT OF THE DEFENDANT, AND SINCE THE CHECK WAS NOT WITHIN THE JURISDICTION OF THE COURT AT THE TIME THE ORDER WAS ISSUED, HAVING BEEN RETURNED TO THE TREASURER BY THE FEDERAL RESERVE BANK OF CLEVELAND WHEN PAYMENT WAS DECLINED ON AUGUST 2, 1956, THOSE PORTIONS OF THE ORDER PURPORTING TO DIRECT THE UNITED STATES GOVERNMENT TO TAKE CERTAIN ACTIONS REGARDING THIS CHECK OR OTHER SUMS DUE THE DEFENDANT ARE NOT BINDING ON THE UNITED STATES. HOWEVER, WHERE PURSUANT TO THE STATE LAW, A COURT POSSESSING AUTHORITY OVER THE PROPERTY RIGHTS OF THE PARTIES TO A DIVORCE ACTION, MAKES AN ORDER BINDING IN PERSONAM ON THE PARTIES DISPOSING OF THE PROCEEDS OF A GOVERNMENT CHECK, NO REASON APPEARS WHY THE COURT JUDGMENT SHOULD NOT BE FOLLOWED BY THE UNITED STATES WHERE THE PROCEEDS APPEAR TO BE DUE AND THE PAYEE IS NOT INDEBTED TO THE UNITED STATES. THE DEFENDANT IN THE COURT ACTION, THE ONLY PARTY WHO COULD COMPLAIN, BEING BY THE COURT DECREE--- WHICH IS BINDING ON HIM PERSONALLY--- DIVESTED OF HIS RIGHTS IN THE CHECK, AND THE RIGHTS OF THE PARTIES THUS HAVING BEEN ADJUDICATED, THE CHECK IS FOR DISPOSITION IN ACCORDANCE WITH THE COURT DECREE.

THE RECORD, AS FORWARDED BY YOU, INDICATED THAT DEFENDANT WAS NOT IN CALIFORNIA AT THE TIME OF THE DECREE OF AUGUST 16, 1956, AND WAS NOT PERSONALLY SERVED WITH PROCESS IN CONNECTION THEREWITH. HOWEVER, THE ORDER WAS ISSUED IN A PROCEEDING TO MODIFY THE SUPPORT AND MAINTENANCE PROVISIONS OF A PRIOR INTERLOCUTORY DECREE OF DIVORCE. THE RECORD NOW CONTAINS DOCUMENTS EVIDENCING THAT N. E. KIRBY WAS PERSONALLY SERVED WITH PROCESS IN CONNECTION WITH THE ORIGINAL DIVORCE ACTION AND THAT HE APPEARED IN THAT CAUSE IN PERSON AND BY HIS ATTORNEYS, MCKENZIE, ARATA AND MURPHY. IT IS ALSO SHOWN THAT MR. KIRBY'S ATTORNEYS IN THE ORIGINAL DIVORCE ACTION, MCKENZIE, ARATA AND MURPHY, WERE STILL HIS ATTORNEYS OF RECORD IN THAT MATTER AT THE TIME OF INSTITUTION OF THE ACTION TO MODIFY THE ORIGINAL INTERLOCUTORY DECREE, AND THAT SAID ATTORNEYS OF RECORD WERE SERVED WITH PROCESS IN SAID ACTION IN ACCORDANCE WITH THE STATUTES OF THE STATE OF CALIFORNIA, AND MADE APPEARANCE THEREIN IN RESPONSE TO SAID SERVICE. THE CALIFORNIA COURTS HAVE HELD THAT A DIVORCE JUDGMENT, INSOFAR AS IT RELATES TO THE CUSTODY AND MAINTENANCE OF MINOR CHILDREN, IS NOT FINAL BUT AS TO SUCH MATTERS THE LITIGATION IS PENDING, AND THE CALIFORNIA STATUTE AUTHORIZING SERVICE UPON A NON-RESIDENT PARTY BY SERVING HIS ATTORNEY OF RECORD APPLIES AS WELL AFTER AS BEFORE ENTRY OF A DIVORCE DECREE. THE CALIFORNIA COURTS HAVE ALSO HELD THAT WHERE THE COURT ONCE SECURED JURISDICTION OVER A DEFENDANT IN A DIVORCE ACTION INVOLVING CUSTODY AND MAINTENANCE OF MINOR CHILDREN, THE DEFENDANT COULD NOT AVOID THE COURT'S CONTINUING JURISDICTION TO MODIFY ITS ORDERS FOR SUPPORT OF SUCH MINORS BY MOVING OUT OF THE STATE; AND THAT SERVICE IN A SUIT FOR MODIFICATION MADE UPON THE ATTORNEY WHO REPRESENTED DEFENDANT IN THE ORIGINAL ACTION WAS SUFFICIENT, NOTWITHSTANDING THAT DEFENDANT HAD DISCHARGED SUCH ATTORNEY AND MOVED FROM THE STATE, WHERE THE RECORD SHOWED SUCH ATTORNEY AS ATTORNEY OF RECORD FOR DEFENDANT. SEE REYNOLDS V. REYNOLDS, 134 P.2D 251; RUSS V. RUSS, 156 P.2D 767. IN THIS CONNECTION, THE SUPREME COURT OF THE UNITED STATES HAS HELD THAT, UNDER THE FULL FAITH AND CREDIT CLAUSE OF THE FEDERAL CONSTITUTION, IF A JUDICIAL PROCEEDING IS BEGUN WITH JURISDICTION OVER THE PERSON OF THE PARTY CONCERNED, IT IS WITHIN THE POWER OF THE STATE TO BIND THAT PERSON BY EVERY SUBSEQUENT ORDER IN THE CAUSE, EVEN THOUGH THE PARTY MAY HAVE LEFT THE STATE. SEE MICHIGAN TRUST CO. V. FERRY, 228 U.S. 346; ADAM V. SAENGER, ET AL., 303 U.S. 59. HENCE, IT APPEARS THAT THE COURT ORDER OF AUGUST 16, 1956, IS A VALID JUDGMENT IN PERSONAM BINDING UPON DEFENDANT N. E. KIRBY.

ACCORDINGLY, THE AMOUNT OF CHECK NO. 3,203,123, SHOULD BE CLEARED FOR DEPOSIT IN THE BANK OF AMERICA, HENDERSON CENTER BRANCH, EUREKA, CALIFORNIA IN ACCORDANCE WITH THE DECREE OF AUGUST 16, 1956, SO THAT THE BANK MAY COMPLY WITH THE COURT ORDER. THIS ACTION WILL AFFORD THE BANK AN OPPORTUNITY TO TAKE WHATEVER ACTION, IF ANY, IT DESIRES AND DEEMS APPROPRIATE TO RECOUP ITS $450 LOSS.

THE COURT ORDER, AFTER PAYMENT OF CREDITORS AND ATTORNEYS' FEES AND THE LIKE, APPARENTLY CONTEMPLATES PAYMENT OF THE AMOUNT OF BOTH CHECKSTO MRS. KIRBY AND HER CHILDREN FOR THEIR SUPPORT AND MAINTENANCE. CONSIDERING THE SMALL AMOUNT OF CHECK NO. 3,171,451 ($2.48) AND THAT BY HER ACTION IN ENDORSING AND NEGOTIATING THE CHECK MRS. KIRBY ALREADY HAS RECEIVED THE BENEFIT OF SUCH AMOUNT, NO FURTHER ACTION NEED BE TAKEN ON SUCH CHECK.

BOTH CHECKS, TOGETHER WITH THE FILE PERTAINING THERETO, ARE RETURNED HEREWITH.

COPIES OF THIS LETTER HAVE BEEN FURNISHED TO THE ATTORNEYS FOR BOTH MR. AND MRS. KIRBY, THE CONFLICTING CLAIMANTS, AS WELL AS TO CONGRESSMEN CLIFFORD DAVIS, GEORGE HUDDLESTON, JR., AND MELVIN PRICE, WHO HAVE EXPRESSED INTEREST IN THE MATTER.

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