Atkins v. Bender
| Decision Date | 17 March 1927 |
| Docket Number | No. 1618.,1618. |
| Citation | 18 F.2d 357 |
| Parties | ATKINS v. BENDER, Collector of Internal Revenue. |
| Court | U.S. District Court — Western District of Louisiana |
Wilkinson, Lewis & Wilkinson, of Shreveport, La., for plaintiff.
Philip H. Mecom, of Shreveport, La., for defendant.
This is a suit against the collector of internal revenue for Louisiana, to recover the sum of $104,306.59, alleged to have been illegally collected as income taxes. The petition was filed September 29, 1926, and on October 15th of the same year the minutes of the court show an "order entered extending the time for filing answer to November 3d on motion of United States attorney." On November 8th exceptions to the citation and want of jurisdiction ratione person? were filed.
These exceptions are now to be disposed of, and while it appears that Bender, collector, resides and is domiciled in the city of New Orleans, which is in the Eastern district of Louisiana, plaintiff contends that by appearing in open court on October 15th, and obtaining an extension of time "for filing answer," defendant thereby waived the right to question the citation or the jurisdiction of this court. The district attorney, on the other hand, takes the position that, since his duty to defend such suits is imposed by statute, he had no power to waive the citation or the jurisdiction, and besides the law itself allowed a period of 60 days within which to plead, and it was not necessary to obtain an extension.
Section 771 of the Revised Statutes provides: "It shall be the duty of every district attorney to prosecute, in his district, * * * to appear in behalf of the defendants in all suits or proceedings pending in his district against collectors, or other officers of the revenue, for any act done by them or for the recovery of any money exacted by or paid to such officers, and by them paid into the treasury." Comp. St. ? 1296.
While the statute just quoted is the source of the district attorney's authority to prosecute or defend such cases, there is nothing therein limiting his power, or directing how it should be done. The action is a personal one against the collector, and the United States is not bound thereby, although, if the court, in rendering its judgment against the collector, should give a certificate of probable cause, the government might pay the judgment itself. Sage v. U. S., 250 U. S. 33, 39 S. Ct. 415, 63 L. Ed. 828.
I see no reason why the citation may not be waived in a...
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Harvey v. United States
...Ry. Light & Power Co. v. United States, D.C.Wash., 236 F. 806; Brookings State Bank v. Federal Reserve Bank, D.C., 291 F. 659; Atkins v. Bender, D.C., 18 F.2d 357. C. The contributions by Mrs. Harvey to the acquisition of property which was assessed and taxed against the estate, which contr......
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Sidbury v. Gill, Civ. No. 446.
...in the judicial district in which he resides. In order to be sued in any other district he must first waive the venue, Atkins v. Bender, D.C.W. D.La., 18 F.2d 357, but there has been no such waiver here. Title 28 U.S.Code § 1391 An appropriate order will be entered. ...