Bice v. Campbell
Decision Date | 09 April 1964 |
Docket Number | Civ. A. No. 3-422. |
Citation | 231 F. Supp. 948 |
Parties | Lorraine Conley BICE, Joined by her Husband, E. Frank Bice, Plaintiffs, v. Ellis CAMPBELL, Jr., District Director of Internal Revenue, and United States of America, Defendants. |
Court | U.S. District Court — Northern District of Texas |
Wm. F. Billings, of Fanning, Billings, Harper, Pierce & Gilley, Dallas, Tex., for plaintiffs.
Barefoot Sanders, U. S. Atty., Kenneth J. Mighell, Asst. U. S. Atty., Dallas, Tex., for defendants.
This action arises out of a levy made by representatives of the Internal Revenue Service which levy was made for the purpose of collecting an alleged delinquent income tax assessment dated May 8, 1959, against E. Frank and Bonnie Bice in the amount of $3,906.12.
The notice of levy was served upon the First National Bank in Dallas and called for payment out of any funds held by the bank which were community property of E. Frank Bice and his present wife Lorraine Conley Bice.
The suit also involves a question of title to an automobile. The question of damages is raised by the plaintiff in her pleading in which she charges that the defendant had tied up the funds of the plaintiff by the levy and had greatly inconvenienced her and tends to charge the defendant in connection with the seizure of the automobile and the tying up of the funds with causing the plaintiff Lorraine Conley Bice material loss.
The suit therefore involves three questions: First, the title to the automobile; secondly, the question of damages by reason of the levy on the automobile and the funds being the separate property of the present wife; and third, it raises the material question of whether or not those funds in the bank and the property generally of the plaintiff Lorraine Conley Bice might be seized and claimed by the government to pay the taxes of the husband, E. Frank Bice.
It should be remembered in considering the matter that the tax in question against E. Frank Bice arose before his marriage to the present wife, Lorraine Conley Bice. The levy in question was made upon the income from the separate property, according to the contention of plaintiff, of the wife of the second marriage, the said Mrs. Lorraine Conley Bice.
As to question No. 1 touching the title to the car, it appears that the car was levied upon as the property of the husband E. Frank Bice or as community property of himself and wife.
The evidence is conclusive to the effect that after the automobile was levied upon that an arrangement was made to deliver it to Mrs. Bice for the sum of $1200.00 and that she paid such out of her separate funds. After she had done this, it was levied upon again to satisfy the tax of her husband due or alleged to have been due before her marriage to him.
If the car had been sold or disposed of in the same manner that this one was to a third party, we think that there is no doubt but that the third party would have received title to the car. It being the separate money of Mrs. Bice, we think she is to all intents and purposes a third party and that the money accepted by the government was paid by her in good faith and that she is entitled to the car, and it will be so ordered.
As to the element of damage claimed by the plaintiff, this suit is brought against the defendant not in his individual capacity but as an officer of the government. In order to hold an official of the government responsible in damages for acts done by him, such acts must be done in violation of law and capricious. If judgment should be rendered for damages, no fund of the government would be liable for the judgment nor would a successor to the defendant Ellis Campbell in any sense be liable for the judgment.
To make the defendant Campbell liable in monetary damages for the act of himself and his agents the suit must have been brought against him in his individual capacity as being an act capricious and unlawful, and a judgment would not run against him as a public official. The claim for damages will therefore be denied.
The above questions arose on motions of the plaintiff on the question of the automobile and motion of damage by the defendant. At the hearing of said motions the third question as to whether or not the levy upon the income from the separate property of the second wife, Mrs. Lorraine Conley Bice, was proper, gives us more concern.
After indicating our views at this hearing certain arguments were made and which were stipulated and filed with the papers of the case by which the further hearing of the matter would be deferred for two weeks and during such time there would be no sale of the automobile and certain funds in the bank would be temporarily released. And it was further stipulated that the parties would be ready for trial at that time if some agreement had not been reached as to the disposition as to the automobile and the remaining acts under levy at the First National Bank.
This stipulation was made without prejudice to the rights of either party but brings before the Court not only the two questions raised by motion but a final question...
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Broday v. United States
...to the particular statute in question. The only cases cited by the taxpayer in his brief in support of his position are Bice v. Campbell, 231 F.Supp. 948 (N.D.Tex.1964) and Mulcahy v. United States, 251 F.Supp. 783 (S.D.Tex.1966). It is apparent that these decisions are now incorrect becaus......
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...is not liable, absent agreement, for the nontortious liabilities that the other spouse incurs during marriage. See Bice v. Campbell, 231 F.Supp. 948, 951 (N.D.Tex.1964) (construing TEX.REV.CIV.STAT.ANN. art. 4616, a predecessor to the present statute); TEX.FAM.CODE ANN. § 5.61(b)(2) (Vernon......
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...fits. Research has disclosed only one published decision of a federal court in Texas treating this point. In that case, Bice v. Campbell, 231 F.Supp. 948 (N.D. Tex.1964), the court held that Article 4616 creates a property right in the wife. It is the opinion of this court that the leading ......
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