Alger v. United States, 16964.

• Decision Date: 28 February 1958
• Docket Number: No. 16964.,16964.
• Citation: 252 F.2d 519
• Parties: T. Potter ALGER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

252 F.2d 519 (1958)

T. Potter ALGER, Appellant, v. UNITED STATES of America, Appellee.

No. 16964.

United States Court of Appeals Fifth Circuit.

February 28, 1958.

Walter C. Wolff, Jr., San Antonio, Tex., for appellant.

Samuel D. Slade, Bernard Cedarbaum, Attys., Dept. of Justice, Washington, D. C., George Cochran Doub, Asst. Atty. Gen., Russell B. Wine, U. S. Atty., San Antonio, Tex., for appellee.

Before RIVES, TUTTLE and CAMERON, Circuit Judges.

TUTTLE, Circuit Judge.

This is an appeal from a judgment by the trial court based on a motion for summary judgment in favor of the United States in an action to recover meat subsidy payments made to the appellant during the years 1943-1945.

Appellant presents two contentions attacking the judgment of the trial court: (1) the action was barred by the Texas two years or four years statute of limitations, Vernon's Ann.Civ.St. arts. 5526, 5529; (2) there was a substantial issue of fact as to whether the government's claim against appellant had been settled, thus making unavailable to the United States the motion for summary judgment.

The first contention must be disposed of summarily by us because it is directly and authoritatively ruled by our decision in United States v. Borin, 5 Cir., 209 F.2d 145. Appellant recognizes that this question has been foreclosed by that case, but again urges it here, hoping for a reversal. We think that decision was right and we follow it here.

The second contention is that, admitting for the purpose of this appeal that appellant cannot attack the validity of the "order" of the R.F.C. upon which the government's suit was based,¹ appellant nevertheless sought to show by his pleading and affidavit that the order had been revoked and that the claim created by it had been cancelled or settled by the United States. Assuming that the pleadings and affidavits before the court at the time it passed upon the motion for summary judgment showed facts which, if believed, would support this defense, of course, the court could not appropriately dispose of the litigation by entering summary judgment for the government.

Rule 56(e), Fed.Rules Civ.Proc., 28 U.S.C.A. provides:

"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."

The only affidavit tendered by the appellant was made by an accountant, J. E. Doyle, and contained the following as respects his contention that the claim had been settled:

"I represented the said defendant, T. Potter Alger in his business with the Reconstruction Finance Corporation and other agencies of the United States government concerning the meat subsidy program. Upon receipt of a letter dated December 17, 1947, by the said T. Potter Alger, at Crystal City, Texas, concerning the meat subsidy program,² such letter was delivered to me almost immediately after receipt of same and I immediately answered the same and thereafter carried on a voluminous correspondence concerning the subject matter of such letter and Subsequently settled this dispute concerning this claim in the local office of the Defense Supply Corporation and the Reconstruction Finance Corporation, and was told that such matter had been satisfactorily settled and the files thereon closed, and that said defendant, T. Potter Alger, owed the government nothing because of such

...