United States v. Theurer

• Decision Date: 09 April 1914
• Docket Number: 2383.
• Parties: UNITED STATES v. THEURER et al.
• Court: U.S. Court of Appeals — Fifth Circuit

213 F. 964

UNITED STATES v. THEURER et al.

No. 2383.

United States Court of Appeals, Fifth Circuit.

April 9, 1914

Rehearing Denied May 18, 1914.

Pardee Circuit Judge, dissenting.

J Charlton R. Beattie, U.S. Atty., of New Orleans, La.

Henry P. Dart, of New Orleans, La. (Dart, Kernan & Dart, of New Orleans, La., of counsel), for defendants in error.

Before PARDEE and SHELBY, Circuit Judges, and NEWMAN, District Judge.

NEWMAN District Judge.

This is a suit brought by the United States, by Charlton R. Beattie United States attorney, in the United States District Court for the Eastern District of Louisiana, against Rudolph Vaihinger, a resident of Germany; Mrs. Sallie Bouwel, wife of A. J. Brooks, and a resident of the parish of Ouachita; Henry E. Leimbach, a resident of the parish of Rapides; and the following, all residents of the parish of Orleans: John Bouwel, Mrs. Louise Bouwel, wife of James McCormack; Charles Bouwel; Mrs. Mary E. Bouwel, wife of Samuel Johnson; Mrs. Louise R. Starck, widow of Alexander Starck; Frank Starck; Alexander Starck, Jr.; Mrs. Magadeline Klein, wife of Charles Foerstner; and Mrs. Wilhemina Henrietta Back, widow of Rudolph F. Theurer-- for the sum of $6,000 and interest thereon at 5 per cent. from April 4, 1868.

Exceptions were filed to the suit, among others this:

'That the alleged claim presented by petitioner has been lost by laches and neglect and is prescribed by the lapse of 10 and 30 years, and that exceptor pleads said laches and neglect and exceptor particularly pleads the prescription of 5, 10 and 30 years to said action.'

And also that the judgment made the subject-matter of the suit, 'if legal and valid, which exceptor denies, abated by the death of Gaspard Theurer, the defendant in said cause, and is no longer a valid and subsistent judgment against exceptor.'

The exception of no cause of action was sustained by District Judge Foster and the suit dismissed. Judge Foster's opinion, which does not appear to have been reported, is as follows:

'This case seems to present another branch of a never ending litigation, originally entitled United States against 'Fifty Barrels of Whisky.' In the original case, a libel was filed in 1867 against 50 barrels of whisky, presumably under the internal revenue law of July 13, 1866. Shortly after the seizure, one Gaspard Theurer appeared and claimed the goods, and they were released to him on bond. After that the case went to trial and resulted in a judgment against him in the District Court, from which he took an appeal to the Circuit Court. And then he died. After his death various other proceedings were had, which eventually established the validity of the judgment of the District Court. The present action is brought against the heirs of his heirs and their heirs, even to the fourth generation, and the United States is seeking to hold them for a judgment of $6,000, with interest at 5 per cent. per annum for about 45 years.

'To the petition exceptions of prescription and no cause of action have been filed. It is principally urged on behalf of the exceptors that the forfeiture of the whisky in the original suit was the enforcement of a penalty, and that the action abated with the death of the original Gaspard Theuer.

'It is contended by the United States that it has been deprived of property worth $6,000, by the bonding of the whisky in the original proceeding, and that Theurer's estate received the benefit, and his heirs have also received the benefit in their turn, and, as they had accepted the successions of their respective ancestors, that under the law of Louisiana they are bound for their debts, whether they derived any benefit or not. It is difficult to understand how Theurer's estate was enriched by bonding the whisky. He owned it and had it in his possession before it was seized, and by bonding it he did no more than get it back. In my opinion the equities are entirely with the defendants.

'The law under which the seizure was made is highly penal. Any one violating its many provisions could be both fined and imprisoned, and even the goods of innocent third persons might be forfeited to the United States. Henderson's Distilled Spirits, 14 Wall. 44. I can see no difference between the forfeiture in this case, with the subsequent judgment on the bond, and a fine imposed after trial on indictment. The form of the action is immaterial. United States v. Chouteau, 102 U.S. 611 (26 L.Ed. 246).

'Treating the present proceeding as a suit to revive, it is clear that the United States would have no standing, as the original action abated by the death of Gaspard Theurer, regardless of the fact that judgment was entered prior thereto. Dyar v. United States, 186 F. 623 (108 C.C.A. 478); United States v. De Goer (D.C.) 38 F. 80; Schreiber v. Sharpless, 110 U.S. 76 (3 Sup.Ct. 423, 28 L.Ed. 65). If it is contended that this is a new proceeding against the heirs, arising under the laws of Louisiana, because of their acceptance without the benefit of inventory of the successions of their respective ancestors, nevertheless it is the same old cause of action, for the Supreme Court of Louisiana has repeatedly said, 'a judgment neither creates, adds to, nor detracts from a debt.' Successions of Anderson, 33 La.Ann. 581.

'It would seem logical that the United States, when seeking a right under the laws of Louisiana, is bound to take all the laws as it finds them. If so, this action would be barred by the prescription pleaded. As to this, however, I express no opinion. But in any event this is a suit to enforce a penalty, and therefore it is barred by the prescription of five years created by the Revised Statutes of the United States, Sec. 1047 (U.S. Comp. St. 1901, p. 727).

'The exception of no cause of action will be maintained and the suit is dismissed.'

This whole matter which is now sought to be brought against, to use Judge Foster's language, 'the heirs of his (Gaspard Theurer) heirs and their heirs, even to the fourth generation,' originated in a seizure by the government in 1867 of 50 barrels of whisky because the same had been removed from the place of its manufacture to a place other than a bonded warehouse, as provided by law, before the duties thereon had been paid, contrary to the form of the statute in such case made and provided, whereby and by force of the statute in such case made and provided the said 50 barrels of whisky became and are forfeited to the United States. Upon this suit being instituted, a bond was given by Gaspard Theurer and the whisky released to him. Issue was joined on the libel filed against the whisky on the ground, first, that it was not true that the whisky had been removed from the place of manufacture to a place other than a bonded warehouse, as provided by law, before the duties thereon were paid, and also denying that any duties were due thereon. There was a trial April 4, 1868, and judgment of condemnation, and the whisky condemned as forfeited to the United States, and a judgment rendered on Theurer's bond and against John I. Adams, as surety thereon. On April 9, 1868, a suspensive bill was allowed to the Circuit Court. It will be remembered that this was in 1868 and under the practice as it then existed. An appeal bond was given and the case removed into the Circuit Court.

On May 2, 1870, this appeal was dismissed for reasons orally assigned. On May 18, 1870, a writ of error was taken to the Supreme Court of the United States. Pending this appeal to the Circuit Court it appears that Gaspard Theurer died.

The case seems to have rested in the Supreme Court of the United States from 1870, until December 4, 1905, when it was docketed and dismissed. The mandate was returned to the Circuit Court, and on January 26, 1906, this mandate was entered and the case remanded to the District Court of the United States for the Eastern District of Louisiana, at New Orleans, to the end that such further proceedings might be taken in the case as may to law and justice appertain.

On August 5, 1911, this suit was brought in the Circuit Court of the United States. The allegations in the petition are that Rudolph F. Theurer was the only child of Gaspard Theurer, and as such his only heir and...