204 F.2d 552 (5th Cir. 1953), 14293, United States v. Richardson

Docket Nº:14293.
Citation:204 F.2d 552
Case Date:May 06, 1953
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 552

204 F.2d 552 (5th Cir. 1953)




No. 14293.

United States Court of Appeals, Fifth Circuit.

May 6, 1953

Roger P. Marquis, Atty., Dept. of Justice, Washington, D. C., Frank B. Potter, U. S. Atty., Ft. Worth, Tex., Curtis P. Harris, Sp. Atty., Dept. of Justice, Oklahoma City, Okl., James M. McInerney, Asst. Atty. Gen., for appellant.

Gillis A. Johnson, R. K. Hanger, Warren Scarborough, Carlisle Cravens and Peveril O. Settle, Jr., Fort Worth, Tex., for appellee S.W. Richardson.

Before HUTCHESON, Chief Judge, and BORAH and RUSSELL, Circuit Judges.

BORAH, Circuit Judge.

This is a condemnation proceeding instituted by the Government July 28, 1950. The petition was filed under the River and Harbor Act of March 2, 1945, 59 Stat. 10, 18, the War Department Civil Appropriation Act, 1948, 61 Stat. 686, the Civil Functions Appropriation Act, 1949, 62 Stat. 1019, and the Civil Functions Appropriation Act, 1950, 63 Stat. 845. It was alleged that the Secretary of the Army, in conformity with the authority vested in him, had determined that the lands to be acquired in Tarrant County, Texas were needed for use in connection with the construction and operation of the Benbrook Dam on the Clear Fork of the Trinity River and that the necessary funds had been appropriated. On July 29, 1950, an order for immediate possession was entered ex parte. Included in the lands described in the petition and the order was Tract B-108, owned by appellee, S.W. Richardson, which is the subject matter of the present controversy.

On November 14, 1950, the Government filed an amended petition for the purpose of amending the description of Tract B-

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108. 1 Thereafter, on November 17, 1950, pursuant to the Declaration of Taking Act of February 26, 1931, the Secretary of War filed a declaration 2 and deposited in court $162, 000 as the estimated compensation for Tract B-108. The court thereafter entered judgment, likewise ex parte, decreeing that title had vested in the United States upon the filing of the declaration and making of the deposit, also declaring the right of just compensation vested in the persons entitled thereto; that possession of the land be immediately delivered; and that the cause be held open 'for such other and further orders, judgments and decrees as may be necessary in the premises.'

Thereafter, on August 21, 1951, appellee filed his answer denying many of the allegations of the petition as amended and setting up numerous objections and defenses to the taking of his property. 3 After the answer was filed, as before, counsel for appellee attempted to have petitioner's attorneys agree on a time and place when it would be most convenient to take the oral deposition of the Secretary of the Army. Appellee offered to bear all of the expenses incurred in attending and taking the deposition and the Secretary and the petitioner and its attorneys were offered every reasonable opportunity to select the time and place where the deposition could be taken with the least inconvenience possible. But the agreement sought was not achieved and there followed the action which is the immediate cause of the present controversy.

On December 31, 1951, appellee filed and served a notice to take the oral deposition of Frank Pace, Jr., Secretary of the Army, at Fort Worth, Texas, on January 15, 1952. The Secretary did not attend and by reason thereof appellee filed a motion on January 28, 1952, under Rule 37(d), F.R.C.P., 28 U.S.C. setting up that the Secretary had willfully failed to appear for the taking of his deposition, had filed no motion under Rule 30, F.R.C.P., or any other applicable rule or statute complaining of the time and place fixed in the notice or seeking any relief in regard thereto; and that the court should dismiss the cause, or in the alternative enter an order requiring the Secretary

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to appear and give his deposition at such time and place as may be fixed by the court, and that upon failure to respond in obedience to said order, this cause be dismissed. A hearing on the motion was had on February 11, 1952. At this hearing appellant's attorneys insisted that the oral deposition should be taken in Washington, D. C. In response to an inquiry by the court as to the proper method of procedure, Government counsel stated that if appellee desired to take the Secretary's deposition, 'this court could enter an order that he can take it in Washington, D. C., or he could simply notify the Attorney General the time and place that he was going to take it in Washington, D. C., and issue a subpoena notifying, just notifying the Attorney General, as attorney of record, and Frank Pace, Jr., will be there, unless he is over in some other country, or something like that.' After the hearing the court entered its order of February 28, 1952, in which it found that no evidence had been offered by petitioner to show that the failure of the Secretary to appear at the time and place specified in the notice was not willful. The order directed the Secretary to give his oral deposition in Washington, D. C., but it did not command his appearance at a fixed time and place and the attorneys for petitioner were directed to obtain the Secretary's designation of a suitable place in Washington, D. C. for the taking of such deposition and a designated time which should be within thirty days from the date of the entry of the order. The order further provided 'that because the Honorable Frank Pace, Jr., Secretary of the Army of the United States is an officer and managing agent of petitioner herein, it shall not be necessary for subpoena to be issued and served herein requiring his attendance * * * but this order shall be deemed sufficient to require his attendance at the time and place as directed herein.' It concludes with the recitation that final ruling on the motion to dismiss will be held in abeyance 'subject to the full compliance with the provisions of this order.' The order of February 28th, was submitted to the Secretary who in turn advised Government counsel that he was unable at that time to fix a date on which he could submit to the oral deposition.

Thereafter the appellant filed a pleading which it chose to call a 'response.' On March 17, 1952, an amended response and objection to the taking of the deposition was filed. These instruments objecting to the taking of the deposition of the Secretary set forth the following, among other matters: that the Secretary advises that he is too busy with other duties of national and international importance;...

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