Creedon v. Randolph, 12094.

Decision Date20 January 1948
Docket NumberNo. 12094.,12094.
Citation165 F.2d 918
PartiesCREEDON v. RANDOLPH.
CourtU.S. Court of Appeals — Fifth Circuit

Nathan Siegel, of Washington, D. C., Sp. Appellate Atty., Office of Housing Expediter for appellant.

No appearance was entered for the appellee.

Before SIBLEY, HOLMES, and WALLER, Circuit Judges.

SIBLEY, Circuit Judge.

The Administrator of Price Controls, represented now by a successor, on Jan. 11, 1947, filed in the district court a complaint against Mrs. Ethel Randolph expressly under Sect. 205(a) of the Price Control Act, 56 Stat. 23,1 and Rent Regulation for Housing, 8 F.R. 7322, alleging that Mrs. Randolph as landlord had rented to Mrs, Grace Meckenberg as tenant certain housing accommodations in St. Petersburg, Florida, and collected from her $385.00 as rent from about Feb. 1, 1945, to May 1, 1945, though the maximum for the period of time fixed under the Regulation was $225, thereby making an overcharge of $160, which had not been refunded. The prayer was for process and "that the defendant be ordered and directed to return * * * all amounts in excess of the maximum rents established by the Act and Regulations issued thereunder which were received from tenants as rent for the use and occupancy of the housing accommodations described in the complaint since the date maximum rates were established therefor by said Regulation; and for such other, further, and different relief as plaintiff may be justly entitled to".

Service was made, and no appearance or answer was filed for the defendant. The case was taken up before the judge on May 9, 1947. Counsel for plaintiff stated: "A motion has been made in this case for default, and there is an injunction proceeding asking for restitution to by the defendant in the amount of $160." The report of the proceedings shows great informality, and consists mostly of statements of the facts by plaintiff's counsel and the presentation of letters and other papers not formally identified but admitted in evidence. Counsel stated that the overcharged tenant was not available, but "I can prove the amount of the overcharge by placing the defendant on the stand and identifying the documents and correspondence." We assume the defendant was present, but she was not put on the stand. The counsel also stated there was considerable correspondence between lawyers, and that defendant's lawyer stated "he would let the case go by default", and again that "he asked to be allowed to pay this in installments", but it seemed "there wasn't any way to force payments in installments". There was formal proof, at the request of the judge, of the maximum rent for this property of $18 per week. At the conclusion of this informal hearing the judge said: "I will take this case under advisement. If there is any legal justification I can find for entering judgment according to the prayer of the complaint I will do so, but I have got to find it first." A few days later he filed a memorandum decision finding that the defendant had rented the premises to Mrs. Meckenberg for three months for $385; that long after the statute of limitations had barred the right of tenant or administrator to institute suit for recovery of the overcharge under Sect. 205(e) of the Act, this suit was brought by the Administrator under Sect. 205(a), praying refund; and that "No other equitable relief is sought by the complaint. Defendant filed no answer or other pleading in this case and a judgment by default has been entered against her". After a discussion of authorities he concluded: "Here no equitable relief is sought. The act complained of was committed long ago, and no threatened present or future violations of the Act are charged in the complaint. There is therefore no legal basis for this court to exercise the traditional equity powers and in so doing order restitution of the alleged overcharge. A judgment will be accordingly entered for the...

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    • September 15, 1980
    ...ESA commend, such a result. See United States v. Pro Football, Inc., 514 F.2d 1396 (Em.App.1975) (restitution only); cf. Creedon v. Randolph, 165 F.2d at 919-20 (EPCA). Section 209 provides for three types of relief: traditional injunctions, mandatory injunctions, and restitution. The draft......
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    ...United States v. Thomas, 5 Cir., 107 F.2d 765. 4 Holmberg v. Armbrecht, 327 U.S. 392, 394, 66 S.Ct. 582, 90 L.Ed. 743. 5 Creedon v. Randolph, 5 Cir., 165 F.2d 918; Co-Efficient Foundation v. Woods, 5 Cir., 171 F.2d 691; Smith v. Woods, 5 Cir., 178 F.2d 467; Woods v. Wayne, 4 Cir., 177 F.2d ......
  • United States v. Bize
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    • September 2, 1949
    ...Cir., 175 F.2d 242; Blood v. Fleming, 10 Cir., 161 F.2d 292; Co-Efficient Foundation, Inc., v. Woods, 5 Cir., 171 F.2d 691; Creedon v. Randolph, 5 Cir., 165 F.2d 918; Woods v. Minucci, D.C.N.Y., 84 F.Supp. 535. The motions to strike such material are being denied and The defendants in No. 4......
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    ...not injunctive relief is sought or is permissible at the time of the order. Woods v. Wayne, 4 Cir., 1949, 177 F.2d 559; Creedon v. Randolph, 5 Cir., 1948, 165 F.2d 918; Jackson v. Woods, 5 Cir., 1950, 182 F.2d 338; Bowles v. Skaggs, 6 Cir., 1945, 151 F.2d 817; Warner Holding Co. v. Creedon,......
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