#### DENNIS LOONEY v. THE DISTRICT OF COLUMBIA.

No. 204

December 18, 1882.

TI10 claimant brought suit against the District of Columbia upon an account for work done under contract. It appeared that tlie same claim bad been rejected by the Board of Audit, and be abandoned the same as not within the jurisdiction of the court. *(Act of Jume*16, 1880, } 8.) On a different account, settled by the Board of Public Works in 1874, an error of computation was proved through which the claimant was overpaid $500. The defendant filed a plea of set-off to recover back this overpayment.

Held :

I. When a claimant brings an action in this court against the District of Columbia, upon a claim of which the court has no jurisdiction by reason of its having been rejected by the Board of Audit, as provided by the *District of Columbia Claims Lot,*nothing can be done in the case except to dismiss the petition when that fact appears.

II. The filing of a plea of set-off or counter-claim in such case, arising on another account, is without force or effect and the court has no jurisdiction over it, and it falls with a dismissal of the petition.

*9This suit was brought December 13, 1880. After the evidence had been filed showing that the claim sued upon had been rejected by the Board of Audit, the claimant abandoned its prosecution in this court. The defendant immediately, on on the 11th of May, 1882, filed a plea of set-off or counter-claim to recover back from the claimant the sum of $500 overpaid to him in 1874 by the Board of Public Works, upon the settlement of another and different account.

The following are the facts found by the court:

I. The claimant, on the 11th day of December, A. D. 1872, entered into a written contract with the Board of Public Works of the District of Columbia for the grading and graveling of Fourteenth street east, between B street south and Boundary, in the city of Washington, at an agreed price per cubic yard, and for extra hauling beyond two hundred feet.

Under said contract the claimant did a large amount of work, and received partial payments from time to time. In December, 1874, the assistant engineer, with the approval of the engineer in charge, stated an account to the auditor of the Board of Public Works, as follows:

*Board of Pntlio WorTcs, D. C., to Dennis Looney, Dr.*

# ***# ***

50,437 cubic yards grading, at 30 cents per yard.. 15,131 10

4&i% cubic yards dry wall, © 1.00 per yard. 46 22

50,437 cubic yards baul 1,300 ft., over 200 ft., at 16£ per yard.. 8,196 01 * * #***•*

22,910 square yards graveling, at 15c. 3,436 50

###****

Box trunk for draining 14th and Md. ave. 54 92

Deduct certifs. 1000, 2179 to 2182, inc. $13,844 27,364 75*

4806... 3,000 16,844

$10,520 75

The auditor certified that the bill was correct in form, that the prices were according to contract, and allowed the balance there appearing, $10,520.75. This balance was paid to the claimant and receipted for by him on the 8th of January, 1874.

*10III. After the establishment of the Board of Audit for the settlement of claims against the District, the claimant, by Ms attorneys, on the 7th of October, 1874, presented a claim to that Board for “removing soil from Fourteenth street east, between Boundary and B street, by authority of Messrs. Smith & Lenaher, at a settled valuation for labor performed September and October, 1873, $500.” This claim, after having been referred to the District Commissioners and by them to the engineer of the District, and reported upon by him, was rejected by the Board of Audit, as is shown by the return of papers made by the Commissioners of the District upon the call of the Assistant Attorney-General, filed in this court May 11, 1882, on behalf of the defendants.

IV. In the settlement aforesaid, of December, 1874, and January, 1875, the claimant’s present demand was not included. In the addition of the indebtedness of the District, in that settlement specified, there was'an error of $500 against the defendants, as appears by the account set forth in the second finding; and on account of that error the claimant was overpaid that amount for the work therein audited.

*Mr. Fppa Hunton*(with whom was *Mr. V. B. Fdwards)*for the claimant:

The claimant’s demand, having been rejected by the Board of Audit, is abandoned.

The court has no jurisdiction of the counter-claim, because the action was not rightly in the court.

*Mr. John 8. Fay*(with whom was *Mr. Thomas Simons, Assistant Attorney-General)*for the defendants:

1. The courtis without jurisdiction of the claimant’s demand, because it was presented to and rejected by the Board of Audit *(Act June*16, 1880), but aside from this objection it should be dismissed on the merits.

2. It is clearly proven that by a mistake in computation $500 has been overpaid to the claimant iu the settlement of his accounts, and the counter-claim therefor should be sustained.

3. The want of jurisdiction to entertain the claim does not deprive the court of jurisdiction to pass upon the merits of the counter-claim.

*

 Correctly added, these figures should be 26,864.75.

*11OPINION.

Richardson, J.,

delivered tbe opinion of tbe court:

Tbe cause of action presented by tbe claimant’s petition in this case is a balance of $500 alleged to be due bim for hauling and piling soil on Fourteenth street east, in Washington, in tbe months of September, October, November, and December, 1872.

After tbe claimant had taken some testimony, tbe defendants, on tbe 11 tb of May, 1882, filed in court a return of papers from tbe Commissioners of tbe District, made upon tbe call of tbe Assistant Attorney-General, which showed that this very claim bad been rejected by the Board of Audit. When this fact became apparent upon tbe record, uncontroverted as it ever since has been by the claimant, tbe jurisdiction of tbe court over tbe matter came to an end, and it was tbe duty of tbe court, upon tbe fact being called to its attention, to dismiss tbe case, since tbe law of Congress under which it acts in District cases expressly provides that “no claim shall be presented to or be considered by tbe Court of Claims under the provisions of this act which was rejected by the Board of Audit.” *(Act of June*16, 1880, cb. 243, § 8; 1 Suppl. Rev. Stat., 564; 15 O. Cls. R.,' XII.)

But tbe Assistant Attorney-General, on behalf of tbe defendants, upon filing tbe report of tbe Commissioners in court, on tbe 11th of May, 1882, filed also a plea of counter-claim against tbe claimant, alleging that be is indebted to them in tbe sum of $500; and it does in fact appear from tbe return of tbe Commissioners that in a settlement between tbe parties, growing out of tbe same contract and work to which the claim set out in the petition relates, there was a manifest clerical error of addition by which tbe claimant was overpaid on that account to tbe amount of $500.

, Tbe defendants now insist that we shall proceed to give judgment in their favor against tbe claimant for this amount upon tbe counter-claim. This, in our opinion, we are not authorized to do. Tbe Court of Claims has no original jurisdiction of potions in behalf of tbe District of Columbia against its alleged debtors. Tbe District cannot primarily institute any suit in this court, and so cannot of its own motion bring parties here to answer to claims against them.

*12The act of Congress does provide that “ the Attorney-General of the United States shall have authority, and it shall be his duty, to defend the District of Columbia against all claims against said District of Columbia prosecuted in said Court of Claims, * * with the same power to interpose counter-claims and offsets against claims and defenses for fraud practiced or attempted, and all other legal defenses, and with like power of appeal, as in cases against the United States tried in said court.” *(Act of June*16,1880, ch. 243, § 3; 1 Suppl. Rev. Stat., 563; 15 C. Cls. R., IX.) This jurisdiction to adjudicate upon claims set up by the District is merely incidental to the jurisdiction over claims presented against it by parties who institute proceedings under authority of the act of Congress, and are themselves rightly before the court with a claim which the court can investigate and adjudicate upon. This is made so by the very language of the statute which the defendants invoke. By Revised Statutes, § 1061, it is provided that “ upon the trial of any cause in which any set-off, counter-claim, claim for damages, or other demand is set up on the part of the Government against any person making claim against the Government in said court [of Claims], the court shall hear and determine such claim or demand both for and against the Government and claimant; and if upon the whole case it finds that the claimant is indebted to the Government, it shall render judgment to that effect.” This provision is made applicable, by the act previously cited, to District of Columbia cases.

If the court is ousted of jurisdiction of the demand presented by the claimant, it is manifest that it cannot proceed to find “ upon the whole case ” that the claimant is indebted to the defendants on the one-sided claim presented by them; and especially is that so in a case like this, where the claims on both sides grow out of the same contract and have relation to parts of the same transaction. It would be unjust to allow the case to proceed upon the defendants’ claim alone, and to shut out the claimant from presenting his demands, since the one might have a material effect upon the other, if tried and determined together.

When, therefore, it appeared upon the record that the claimant was not rightly before the court, that he presented nothing on his part which was within its jurisdiction, that he and his claim were *ipso facto*ousted, without the necessity of any ac*13tion on tbe part of tbe court, tbe subsequent filing of a counterclaim by tbe Assistant Attorney-General did not operate to bold tbe claimant to answer to a new cause of action set up against bim. Tbe filing of tbe counter-claim was wholly without force or effect. Tbe defendants could not change the proceedings into an action which presented nothing but a demand against tbe claimant who was turned out of court for want of • jurisdiction ovér tbe only claim set forth in bis petition.

We can do nomore than to enter an order dismissing tbe whole case, both tbe claimant’s petition and tbe defendants’ counterclaim, for want of jurisdiction, and that will accordingly be done.