
    BANK OF AMERICA NAT. TRUST & SAVINGS ASS’N v. UNITED STATES et al.
    No. 23664.
    District Court, N. D. California, S. D.
    Sept. 17, 1946.
    
      Thomas • J. Riordan and Eugene H. O’Donnell, both of San Francisco, Cal., for plaintiff.
    Frank J. Hennessy, U. S. Atty., and William E. Licking, Asst. U. S. Atty., both of San Francisco, Cal., for defendant United States.
    Joseph W. Bernal, of Berkeley, Cal., for defendant Edward Miller.
    Edward N. Jackson, of San Francisco, Cal., for defendant George C. Welden.
   GOODMAN, District Judge.

It appears from the stipulation of facts that the tax claim of the United States became a recorded lien by the filing of notice of lien (26 U.S.C.A. Int.Rev.Code, § 3672) prior to the effectuation as liens of the judgments of the creditor defendants. Hence the tax lien of the United States was superior to the judgment claims of defendants. Underwood v. United States, 5 Cir., 118 F.2d 760; MacKenzie v. United States, 9 Cir., 109 F.2d 540; United States v. Record Pub. Co., D.C., 60 F.Supp. 194.

Upon findings to be presented, the funds on deposit will be ordered paid to the United States less costs of plaintiff and attorneys fees in the sum of $200. Massachusetts Mutual Life Ins. Co. v. Morris, 9 Cir., 61 F.2d 104; Globe Indemnity Co. v. Puget Sound Co., Inc., 2 Cir., 154 F.2d 249.

Findings of Fact.

I. This is an action of interpleader brought by the plaintiff against conflicting claimants to a fund in the amount of $3199.-59, originally on deposit in the Healdsburg Branch of the plaintiff corporation located at Plealdsburg, Sonoma County, California, to the credit of the defendant, Lyle B. Everett. On the 7th day of September, 1°44, said amount was, by the Order of this Court deposited with the Clerk of said Court to abide the result of this action.

II. The default of the defendants Lyle B. Everett and Joseph L. McEachern was granted on October 15, 1945, on the motion of the plaintiff, no answer or other pleading having been filed by said defendants, or either of them. All other defendants answered. The plaintiff filed a motion for an interlocutory decree of dismissal and has been dismissed from the action. Plaintiff’s motion for an order allowing its attorneys’ fees and costs was, at the time of submission still pending before the Court. Said motion is supported by an affidavit on file herein and no affidavits in opposition are on file.

III. The claim of the defendant George C. Welden, doing business under the firm name and style of Wholesalers Adjustment Bureau of San Francisco, to the fund in question, is based upon the following facts: On November 22, 1943, a writ of attachment dated November 19, 1943, was served upon the plaintiff bank. This writ of attachment issued out of action Number 323811 in the Superior Court of the State of California in and for the City and County of San Francisco, entitled “Wholesalers Adjustment Bureau of San Francisco versus Lyle B. Everett et ah,” seeking a recovery of $2985.30. On April 20, 1944, the Court rendered judgment in the sum of $2052.58 which was entered in the minutes of the Court on said date by Stipulation between the parties in said action. On April 21, 1944, the above judgment was entered and recorded in Volume 602, p. 419 of the judgment book of said Court, in and for the City and County of San Francisco. On April 25, 1944, a writ of execution issuing under said judgment in the amount of $2078.36 was served upon plaintiff bank.

IV. The claim of the defendant Edward Miller to the fund on deposit arises out of the following facts: Edward Miller instituted an action against the Everett and Mc-Eachern Lumber Company which was a copartnership composed of the defendants Lyle B. Everett and Joseph L. McEachern. This action in the Superior Court of the State of California in and for the County of Mendocino is entitled “Edwin Miller versus Everett and McEachern Lumber Company et al., Number 14279.” On January 5, 1944, a writ of attachment issuing out of said action in the amount of $8212.-52 was served upon the plaintiff bank. On March 11, 1944, judgment by default was entered in said action in favor of plaintiff in the amount of $5052.43, attorneys fees, at 15% of amount received, interest from date of judgment at 7% and costs in the amount of $149.75, and that said judgment was regularly entered March 11, 1944, in Book 21, page 269 of Judgments in the office of the County Clerk of Mendocino County, California.

V. The claim of the United States is based upon the following facts: There is due to the United States from defendants Lyle B. Everett and Joseph L. McEachern $2520.75 for withholding tax, and additional penalties and interest thereon as provided by law, duly assessed by the United States Commissioner of Internal Revenue on March 25, 1944; the Commissioner’s assessment list of said tax was received by the United States Collector of Internal Revenue for the First Collection District of California on March 27, 1944; notice and demand for payment was made on taxpayers on April 3, 1944; warrant for distraint issued by said Collector on April 3, 1944, and on April 21, 1944, at 11 minutes past 11:00 o’clock A. M. notice of tax lien for said taxes with additional interest and penalties thereon in the total amount of $2620.-51 was filed of record with the County Recorder of Sonoma County, California.

There is due to the United States from defendants Lyle B. Everett and Joseph L. McEachern $629.85 for social security tax and additional penalties and interest thereon, duly assessed by the United States Commissioner of Internal Revenue on April 11, 1944; the Commissioner’s asssesment list of said tax was received by the United States Collector of Internal Revenue for the First Collection District of California on April 14, 1944; notice and demand for payment was made on taxpayers April 17, 1944, and on April 21, 1944, at 10 minutes past 11:00 A.M. a notice of tax lien for said taxes with additional penalties and interest thereon in the amount of $661.34 was filed of record with the County Recorder of Sonoma County, California. The total amount due the United States from said taxpayers on account of said taxes assessed and noticed as aforesaid is $3281.95 together with interest thereon from April 21, 1944, as provided by law. No part of said sum has been paid and the whole thereof remains due, owing and unpaid to the United States.

VI. On April 21, 1944, the Collector of Internal Revenue for the First Collection District of California served a notice of levy for said taxes upon the plaintiff bank at its Healdsburg Branch, in Healdsburg, Sonoma County, California.

VII. That the reasonable value of attorneys fees incurred by the plaintiff in this action amount to the sum of $200.

Frcm the foregoing findings of fact the Court draws the following Conclusions of Law:

I. That the defendants, Lyle B. Everett and Joseph L. McEachern, are now and at all times since the 25th day of March, 1944, have been indebted to the defendant, United States of America, in the sum of $2520.-70, with interest and penalties as provided by law, for withholding taxes assessed against them.

II. That the defendants, Lyle B. Everett and Joseph L. McEachern, are now and at all times since the lltli day of April 1944, have been indebted to the defendant, United States of America, in the sum of $629.-85, with interest and penalties as provided by law, for social security taxes assessed against them.

III. That the defendants, Lyle B. Everett and Joseph L. McEachern, are now and at all times since the 21st day of April, 1944, have been indebted to the defendant, United States of America, in the total amount of $3281.95, together with interest from that date as provided by law.

IV. That a lien in favor of the United States arose on the 27th day of March, 1944, when the Collector of Internal Revenue for the First Collection District of California received the Commissioner of Internal Revenue’s Assessment list on March 25, 1944, carrying an assessment of $2520.75 for withholding tax with additional penalties and interest, against the defeudants Lyle B. Everett and Joseph L. McEachern, which lien attached to all of the property and rights to property, whether real or personal, belonging to said defendants Lyle B. Everett and Joseph L. McEachern and particularly to the sum of $3199.59 then belonging to said Lyle B. Everett and on deposit to his credit in the Healdsburg Branch of the plaintiff corporation at Healdsburg, in Sonoma County, California, and now on deposit with the Clerk of this Court to abide the result of this action.

V. That a lien in favor of the United States arose on the 14th day of April, 1944, when the Collector of Internal Revenue for the First Collection District of California received the Commissioner of Internal Revenue’s assessment list of April 11, 1944, carrying an assessment of .$629.85 for social security tax, and additional penalties and interest against the defendants Lyle B. Everett and Joseph L. McEachern, which lien attached to all of the property and rights to property, whether real or personal, belonging to said defendants, Lyle B. Everett and Joseph L. McEachern, and particularly to the sum of $3199.59 then belonging to said Lyle B. Everett and on deposit to his credit in the Healdsburg Branch of the plaintiff corporation at Healdsburg in Sonoma County, State of California, and now on deposit with the Clerk of this Court to abide the result of this action.

VI. That on the 21st day of April, 1944, said liens upon said sum of $3199.59 were rendered valid as to all persons when the Collector of Internal Revenue filed notices thereof in the office of the County Recorder of Sonoma County, California, and served notice of levy thereon upon plaintiff bank at its Healdsburg Branch, in Healdsburg, Sonoma County, California.

VII. That the defendants, Lyle B. Everett and Joseph L. McEachern, have also been indebted to the defendant George C. Welden in the sum of $2052.58 at all times since April 20, 1944, because of a judgment obtained against them on said day by George C. Welden in the Superior Court of the State of California- in and for the City and County of San Francisco, but that neithe said indebtedness nor the judgment obtained thereon constituted, as of April 21, 1944, tlie date upon which the United States perfected its liens, by recording notice thereof, a lien upon the sum of $3199.-59 then belonging to said Lyle B-. Everett and on deposit to his credit in the Healdsburg Branch of the plaintiff corporation at Healdsburg in Sonoma County, State of California, and now on deposit with the Clerk of this Court to abide the result of this action.

VIII. That the defendants, Lyle B. Everett and Joseph L. McEachern, have also been indebted to the defendant Edward Miller in the sum of $5052.43, plus attorney’s fees, interest and costs, at all times since the 11th day of March, 1944, because of a default judgment entered against them and in favor of the defendant, Edward Miller, on said day in the Superior Court of the State of California, in and for the County of Mendocino but that neither said indebtedness nor the judgment obtained thereon constituted as of April 21, 1944, the date upon which the United States perfected its liens, by recording notices thereof, a lien upon the sum of $3199.-59 then belonging to said Lyle B. Everett and on deposit to his credit in the Healdsburg Branch of the plaintiff corporation at Healdsburg in Sonoma County, State of California, and now on deposit with the Clerk of this Court to abide the result of this action.

IX. That the tax liens of the United States are superior to the rights, claims and liens of each and all of the creditor defendants in and to the fund of $3199.59 on deposit with the Clerk because recorded in Sonoma County, California, prior to the effectuation of any judgment liens in said County by any of said defendants.

X. That the sum of $3199.59 belonging to the defendant, Lyle B. Everett, and previously on deposit to his credit in the Healdsburg Branch of the plaintiff corporation at Healdsburg in Sonoma County, State of California, and now on deposit with the Clerk of this Court should be distributed as follows:

1. The sum of $200 to the plaintiff, Bank of America National Trust and Savings Association, for attorneys fees incurred by it in this action plus its costs to be taxed;

2. The remainder to the United States of America to be applied upon the withholding and social security taxes due it from the defendants Lyle B. Everett and Joseph L. McEachern, the payment of which is secured to it by the tax liens of which notices were filed in the office of the County Recorder of Sonoma County, California, on the 21st day of April, 1944.

XI. That a decree should be entered in accordance with the foregoing Conclusions of Law.  