Piuma v. United States, 9934.

Decision Date15 April 1942
Docket NumberNo. 9934.,9934.
Citation126 F.2d 601
PartiesPIUMA v. UNITED STATES.
CourtU.S. Court of Appeals — Ninth Circuit

Canepa & Castruccio, of Los Angeles, Cal. (Horace W. Danforth, of Los Angeles, Cal., of counsel), for appellant.

Wm. Fleet Palmer, U. S. Atty., and James L. Crawford, and John M. Gault, Asst. U. S. Attys., all of Los Angeles, Cal. for appellee.

Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges.

MATHEWS, Circuit Judge.

On April 6, 1937, in a proceeding under § 5 of the Federal Trade Commission Act, 15 U.S.C.A. § 45, the Commission ordered appellant, Joseph A. Piuma, to cease and desist from directly or indirectly representing that Glendage — a nostrum sold and distributed by appellant in interstate commerce — (1) is a gland tonic; (2) will restore vigorous health; (3) is the best gland remedy known; (4) constitutes a remedy for glands; (5) is the last word in modern science in gland remedies, and stimulates all the glands to healthy activity; (6) is entirely unlike other so-called gland remedies; (7) stands superior as a tonic; (8) is a remedy for cases of nervousness, overwork, lack of vim and lack of vigor; (9) will return one to the full vigor of manhood or womanhood; (10) is a competent and effective treatment or corrective for use in remedying the ailments and conditions hereinabove mentioned. The order was served on appellant on April 10, 1937. No petition to review it was ever filed. It therefore became final on May 20, 1938,1 and was at all times thereafter in full force and effect.

On April 24, 1940, appellee, the United States, brought an action against appellant under § 5(l) of the Federal Trade Commission Act, as amended by § 3 of the Act of March 21, 1938, c. 49, 52 Stat. 111, 15 U.S. C.A. § 45(l).2 The complaint charged thirteen violations of the order, in that, between September 15, 1938, and January 30, 1940, appellant had published thirteen newspaper advertisements, each of which was substantially as follows: "Money-Back Gland Tablet Calls for Trial. Every cent will be refunded if results from Glendage are unsatisfactory. That's how sure we are that we have one of the best gland tablets known. Thousands of tests have proven this to our full satisfaction. You, too, may prove it without risking a penny. Glendage, in convenient tablet form, is the private prescription of Jos. A. Piuma, Graduate Pharmacist. It contains the extracts from the glands of healthy animals and its purpose is to help stimulate all the glands to healthy activity. You will be surprised at its invigorating action. Vigorous health is necessary for success in all activity today. Asthma, Diabetes, Rheumatism, Constant Tiredness, Low Blood Pressure, Prostate Gland Trouble, Nervousness and others are ailments frequently cause by gland disorders. You owe it to yourself and family to try this new gland tablet. It is a real gland product and carries an unlimited money-back guarantee if it does not give complete satisfaction. 30-day treatment, $3.00."

Answering, appellant admitted all material allegations of the complaint. There being no issue as to any material fact, appellee moved for a summary judgment.3 The motion was granted and judgment was entered in appellee's favor for $3,250 ($250 for each violation of the Commission's order) and for costs. From that judgment this appeal is prosecuted.

The appeal is a frivolous one. Facts warranting the judgment were alleged in the complaint and admitted in the answer. Thus, instead of a defense, the answer was, in effect, a confession of judgment. There was and is no basis for an appeal.

The answer stated appellant's conclusion that the Commission had no jurisdiction to make the order, but stated no facts warranting the conclusion. Instead, it admitted facts showing the conclusion to be unwarranted and false. The complaint alleged and the answer admitted that the Commission issued its complaint and notice of hearing on September 5, 1934, and caused the same to be served on appellant on September 10, 1934; that appellant answered the Commission's complaint on October 2, 1934; and that, after a hearing at which evidence was received in support of the Commission's charges (no evidence being offered by appellant), the Commission made its report, stating its findings as to the facts, and thereupon made the order first hereinabove mentioned. Copies, admitted to be true copies,...

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  • US NUCLEAR REG. COM'N v. Radiation Tech., Inc., Civ. A. No. 80-2187.
    • United States
    • U.S. District Court — District of New Jersey
    • 6 Agosto 1981
    ...employed in section 5(1) collection actions when viewed by the courts as within the perimeters of the federal rules. Piuma v. United States, 126 F.2d 601 (9th Cir. 1942); United States v. Papercraft Corp., 393 F.Supp. 408 (W.D. Pa.1975); United States v. Hindman, supra, 179 F.Supp. at This ......
  • Farmington Dowel Products Co. v. Forster Mfg. Co.
    • United States
    • U.S. Court of Appeals — First Circuit
    • 12 Febrero 1970
    ...141, 142-143 (7th Cir. 1944); 152 A.L.R. 1194; United States v. Piuma, 40 F. Supp. 119, 122 (S.D.Cal.1941), aff'd, Piuma v. United States, 126 F.2d 601 (9th Cir. 1942), cert. denied, 317 U.S. 637, 63 S.Ct. 28, 87 L.Ed. 513 (1942); United States v. Five Cases of Capon Springs Water, 62 F.Sup......
  • New Jersey Wood Finishing Co. v. Minnesota Min. & Mfg. Co.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 20 Mayo 1964
    ...Lee Co. v. Federal Trade Commission, 113 F.2d 583 (8 Cir. 1940); United States v. Piuma, 40 F. Supp. 119 (S.D.Calif.1941); affirmed 126 F.2d 601 (9 Cir. 1942); See 152 ALR Anno. 1198 The "proceeding in equity" therefore was not the Commission proceeding but the proceeding before the Court o......
  • United States v. JB Williams Company, Inc.
    • United States
    • U.S. District Court — Southern District of New York
    • 22 Enero 1973
    ...in this action. See Federal Trade Commission v. Morton Salt Co., 334 U.S. 37, 54, 68 S.Ct. 822, 92 L.Ed. 1196 (1948); Piuma v. United States, 126 F.2d 601, 603 (9th Cir.), cert. denied, 317 U.S. 637, 63 S.Ct. 28, 87 L.Ed. 513 (1942); United States v. H. M. Prince Textiles, Inc., 262 F.Supp.......
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