
    BRYAN v. CURTIS.
    Appellate Practice; Parties; Injunctions; Equity Practice; Demurrers.
    1. Where an appellate court finds that an indispensable party whose interests are directly involved has not been made a party to the proeeeding, the rule is to reverse and remand the ease in order that the defect may be cured.
    2. Where a trustee in bankruptcy of a deceased party, who had filed an Indian depredation claim in the court of claims, and whose administrator had been substituted as plaintiff in that court, filed a bill in equity against the administrator and the Secretary of the Treasury to recover an appropriation made to pay the claim, in order that it might be administered according to the bankruptcy law, and to restrain the Secretary from paying the appropriation to the administrator, and a temporary injunction against the Secretary was granted, whereupon the administrator appeared specially and objected to the jurisdiction of the court, and moved to vacate an order of publication which had been made, on the ground of nonresidence, while the Secretary demurred to the bill on the ground that an administrator appointéd by the court of another jurisdiction is not amenable to suit in this jurisdiction, and that such a claim against the United States is not assignable in bankruptcy but passes only in administration proceedings,—a decree sustaining the demurrer of the Secretary, and dismissing the bill, was reversed on an appeal by the complainant, and the case remanded in order that the motion of the administrator might be acted upon and a final decree rendered settling, as far as practicable, the rights of all parties (following Roberts v. Gonsaul, 24 App. D. C. 551); and it was held that whether the temporary injunction should be continued was within the discretion of the trial court; but it was intimated that such an order might well be made if necessary to preserve the subject-matter of the litigation; and each party to the appeal was required to pay one half of the costs in this court.
    No. 1551.
    Submitted May 25, 1905.
    Decided June 13, 1905.
    Hearing on an appeal by the complainant from a decree of the Supreme Court of the District of Columbia sustaining a demurrer of one of two defendants and dismissing a bill in equity for an injunction and for other relief.
    
      Reversed.
    
    The Court in the opinion stated the case as follows:
    The bill in this case was filed by Morgan Bryan, trustee, against Alice V. Curtis, administratrix, and Leslie M. Shaw, Secretary of the Treasury, on May 31, 1904, in the supreme court of the District of Columbia.
    It alleges, substantially, that on August 15, 1893, William It. Curtis filed two suits in the court of claims for depredations committed by the Indians, under the act of Congress providing therefor, approved March 8, 1893.
    That on May 17, 1899, said William B. Curtis, who lived in the northern district of Texas, was duly adjudged a bankrupt in the course of proceedings instituted in the United States district court therefor, and complainant was regularly appointed trustee of his estate.
    That said Curtis afterwards died intestate, and Alice Y. Curtis was duly appointed administratrix of his estate by the probate court of the State of Texas having jurisdiction thereof.
    That on March 29, 1902, the said administratrix was, upon motion of the court of claims, substituted as a party plaintiff in the suits aforesaid instead of the said William B. Curtis, deceased.
    That on June 1, 1903, complainant filed in each of said suits certified copies of the order appointing him trustee as aforesaid, and of his bond given in obedience thereto, and notified the counsel for the plaintiff therein of the same in accordance with the provisions of the bankruptcy act. That no notice thereof was taken, and the court of claims, without actual knowledge of the fact, rendered judgment in each case in favor of the said administratrix.
    That said judgment, excluding the portions adjudged to the plaintiff’s attorneys under their contracts, amounted together to about the sum of $5,786. That on April 19, 1904, complainant filed a petition in said cases setting up the proceedings in bankruptcy aforesaid, and asked that said judgments be reopened, and that he be substituted in the stead of said William B. Curtis, to the exclusion of said administratrix, and that the judgments be entered in his favor as trustee. That the court of claims refused said prayer on the ground that the contest between the parties could not be waged in that court, but in a court of equity alone, arid dismissed the petition without prejudice.
    That on April 27,1904, Congress appropriated money for the payment of said judgments among others; and the Secretary of the Treasury is authorized and ready to pay the same.
    That, by virtue of said proceedings in bankruptcy, all the right, title, and interest of said William N. Curtis, passed to and vested in complainant as trustee; and that the appointment of the administratrix aforesaid vested no title in her and gave her no right to collect the said judgments.
    The prayers were that said defendants be made parties; that said Shaw be restrained from making payment to said administratrix; that complainant be decreed to be entitled to collect and receive the payment of said judgments, to be administered according to the p rovisions of the bankrupt act; that defendant Shaw, as Secretary of the Treasury, be authorized and directed to pay over to complainant the full amount of said judgments; and that said administratrix, her attorneys and agents, be forever restrained and enjoined from collecting and receiving the same.
    A demurrer was filed by the defendant Shaw, on the grounds of the want of equity in the bill; that he could not be sued as an officer of the United States for whom he acted; and that the defendant, Alice V. Curtis, is shown to be a resident of the State of Texas, and there is no averment that she has any property or credits in the District of Columbia other' than the judgments aforesaid.
    The answer of the rule to show cause why the injunction should not issue, sets up the proceedings in the court of claims, and the nonresidence of the said administratrix, with the consequent want of jurisdiction over her and the funds in controversy.
    An amendment to the bill avers the residence of the administratrix in the State of Texas, and asks for an order of publication against her.
    The appointment of a receiver was also prayed for. The restraining orders prayed for were granted; also the order of publication; but the appointment of a receiver was denied.
    Alice Y. Curtis, administratrix, appeared specially for the purpose of objecting to the jurisdiction of the court, and her sworn motion [to vacate tbe order of publication] alleges tbe fact concerning ber residence and administration in Texas, and tbat sbe bas never taken out letters of administration in tbe District of Columbia.
    Without acting upon, or disposing of, this motion, tbe demurrer of tbe said Shaw was beard and sustained, and tbe bill dismissed with costs. From this decree the complainant bas appealed.
    
      Mr. George E. Hamilton, Mr. Michael J. Colbert, and Mr. John J. Hamilton for tbe appellant.
    
      Mr. Morgan H. Beach, United States Attorney for tbe District of Columbia, and Mr. Charles A. Keigwin and Mr. J esse C. Adkins, Assistants, for tbe appellee tbe Secretary of the Treasury.
   Mr. Chief Justice Shepard

delivered tbe opinion of the Court:

We are constrained to reversé tbe decree in this case, without disposing of tbe substantial questions involved in tbe controversy, for reasons similar to those which governed in tbe recent ease of Roberts v. Consaul, 24 App. D. C. 551.

Tbat ease involved tbe title to certain funds in tbe Treasury of tbe United States, and tbe Treasurer, instead of tbe Secretary, was made a party defendant. Tbe other claimant of tbe fund, to whom tbe Treasurer was about to make tbe payment in accordance with tbe appropriation act of Congress, was a nonresident, and bad not .been served with process in any manner. Tbe judgment of tbe court of claims was in bis favor, and be claimed in bis own right, therefore, and not as administrator, as tbe claimant here does.

Tbe Treasurer demurred upon substantially tbe same grounds presented in tbat of tbe Secretary in this case, except as to tbe matter of foreign administration. Tbe demurrer was overruled, and tbat decree was sustained upon appeal, on tbe ground tbat, as between tbe Treasurer on the one hand and the complainant on the other, the fund had a locality in the District of Columbia which, as between them, brought it under the jurisdiction of the court. The Treasurer having no interest in the controversy, the decree was, in effect, interlocutory merely, and the final question of jurisdiction over the fund, as between the real claimants, remains to be decided after the other defendant shall have been brought before the court by proper process.

In this ease notice was given by publication to the real party defendant, but she appeared specially for the single purpose of objecting to the jurisdiction, and her motion or plea has never been acted upon.

The Secretary of the Treasury is not the representative of her interests, yet the contentions on his behalf in support of the decree dismissing the bill are founded thereon. These are: “1. An administratrix appointed by a court of another jurisdiction is not amenable to suit in the District of Columbia. 2. A claim against the United States under the Indian depredation act is not assignable in bankruptcy, but passes only in administration proceedings/

Now, while the administratrix has the full benefit of the dismissal of the bill, she is not in a situation to be concluded by the present determination of these questions. At the same time, their determination would seriously affect her interests if adverse thereto. The situation is analogous to that where an appellate court finds that an indispensable person, whose interests are directly involved, has never been made a party to the proceeding. In such cases the rule is to reverse and remand the cause in order that the defect may be cured. Hoe v. Wilson, 9 Wall. 501, 504, 19 L. ed. 762, 763. The questions raised are both important and difficult, and; without intimating any opinion whatever in regard to them, the decree will be reversed and the cause remanded, in order that the motion of the administratrix may be acted upon, and a final decree rendered settling, as far as practicable, the rights of all parties concerned.

Whether the order restraining the collection of the money appropriated for the payment of the judgments shall be con-tinned in force until a final determination of tbe issues between tbe trustee and tbe administratrix, in this jurisdiction or in any other if the trustee be so advised, is a matter which, under the circumstances, must be remitted to the exercise of the discretion of the trial court.

It would seem, however, that such an order might well be made if necessary to preserve the subject-matter of the litigation, with ample provision for indemnity against any injury that might accrue.

In accordance with these views, the decree will be reversed with costs, to be paid, one half by each of the parties to this record, and the cause remanded for further proceedings not inconsistent with this opinion. It is so ordered. Reversed.  