Opinion
No. 9847.
November 16, 1949.
Mr. Morton Hollander, Attorney, Department of Justice, Washington, D.C., with whom Assistant Attorney General H.G. Morison and Messrs. George Morris Fay, United States Attorney, and Samuel D. Slade, Attorney, Department of Justice, Washington, D.C., were on the brief, for appellant. Messrs. Sidney Sachs, Assistant United States Attorney, and William Clarence Brewer, Attorney, Department of Justice, Washington, D.C., also entered appearances for appellant.
Mr. John Geyer Tausig, Washington, D.C., with whom Mr. Gibbs L. Baker, Washington, D.C., was on the brief, for appellee.
Before CLARK, PRETTYMAN, and PROCTOR, Circuit Judges.
This cause came on to be heard on the transcript of record from the United States District Court for the District of Columbia, and was argued by counsel; and thereafter on request of the court the parties filed memoranda on the question whether the case has abated.
On consideration whereof, and it appearing that appellant Rear Admiral W.A. Buck, sued herein as Paymaster General of the Navy, resigned such office on March 1, 1948, and was succeeded by Read Admiral Edwin D. Foster, who now holds that office, and it appearing that no motion was made under Section 11 of the Act of February 13, 1925 (formerly Sec. 780, Title 28, U.S.Code, which was repealed by the Act of June 25, 1948, Ch. 646, 62 Stat. 992, effective September 1, 1948), requesting the Court to "permit the cause to be continued and maintained by or against the successor in office of such officer," and that the six-months period within which such a motion could have been made expired September 1, 1948, and the Court being of opinion that the action has abated because of failure to substitute appellant's successor [See Defense Supplies Corp. v. Lawrence Co., 1949, 336 U.S. 631, 69 S.Ct. 762, particularly that portion of the opinion dealing with United States ex rel. Claussen v. Curran, 1928, 276 U.S. 590, 48 S.Ct. 206, 72 L.Ed. 720] it is
Covered by Federal Rules of Civil Procedure, Rule 25, 28 U.S.C.A.
Ordered by the Court that the judgment of the District Court on appeal in this case be, and it is hereby, vacated and that this case be, and it is hereby, remanded to the District Court with directions to dismiss the complaint as abated.