Opinion
No. 45734.
February 1, 1943.
H.J. Crawford, of Cleveland, Ohio, Roger Hinds, of New York City, and John A. Duncan and Squire, Sanders Dempsey, all of Cleveland, Ohio, for plaintiff.
John A. Rees, of Washington, D.C., and Samuel O. Clark, Jr., Asst. Atty. Gen., for defendant.
Suit by Adrian D. Joyce against the United States to recover income taxes alleged to have been erroneously collected for the year 1934, wherein the defendant filed a plea to the jurisdiction seeking to have the suit dismissed.
Plea sustained and suit dismissed.
The plaintiff sues to recover income taxes alleged to have been erroneously collected for the year 1934. The defendant on September 16, 1942, filed a plea alleging that at the time this suit was filed and ever since there has been pending against Frank F. Gentsch, Collector of Internal Revenue at Cleveland, Ohio, a suit on the same cause of action and that when the cause of action arose the said Gentsch was acting under the authority of the United States. It, therefore, asks that this suit be dismissed.
Copy of this plea was mailed plaintiff's attorneys on September 16, 1942, which raises a presumption of service (Rule 83(c), and no reply thereto has been made. The case was placed on the law calendar for hearing on the plea under rule 86, but the plaintiff did not appear when the case was called. The allegations of the plea, therefore, must be taken as confessed.
Section 154 of the Judicial Code, 28 U.S.C.A. § 260, prohibits the prosecution of a suit in this court while there is pending in any other court a suit against a person who at the time the cause of action arose was acting or professing to act in respect thereto under the authority of the United States. The defendant's plea is sustained and this suit, therefore, must be dismissed. It is so ordered.