Thibodo v. United States
Decision Date | 28 March 1955 |
Docket Number | Civ. No. 1030. |
Citation | 134 F. Supp. 88 |
Court | U.S. District Court — Southern District of California |
Parties | F. E. THIBODO, Plaintiff, v. UNITED STATES of America, Defendant. |
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Roscoe R. Hess, Los Angeles, Cal., for plaintiff.
Laughlin E. Waters, U. S. Atty., Los Angeles, Cal., by Albert N. Minton, Special Attorney, Lands Division, Los Angeles, Cal., for defendant.
A pre-trial order entered on March 28, 1955 (which is appended to this opinion as Exhibit A) called for determination by the Court, in advance of trial, of certain legal principles which in the opinion of court and counsel would determine the course of the future litigation. This is one of the most beneficial uses of the pre-trial procedure.1
A consideration of the problems presented requires a statement of the prior proceedings which culminated in a decision of the Court of Appeals determining certain questions which are the law of the case.
On November 23, 1948, plaintiff instituted his original action claiming damages for deprivation of rights founded upon the Constitution of the United States.2 Plaintiff was the owner of certain street improvement bonds issued to him by the Treasurer of the City of National City, California, on August 24, 1931, under the California Improvement Act of 1911. The bonds were payable in ten annual installments beginning January 2, 1932.3 At the time of the institution of the action and ever since, the bonds were a lien on certain lands within the city limits of National City, California. On February 9, 1943, the United States instituted an action in the District Court for the Southern District of California to condemn lands which included the lands on which the bonds were a lien.
A Declaration of Taking was filed on the same day and the Court made an Order of Immediate Possession pursuant to it.4 The plaintiff was not made a party to the action and was not served with summons or complaint in it.
On November 23, 1948, plaintiff filed an action in this court seeking judgment against the United States in the amount of the principal sums on the bonds. He also sought a declaration that each bond constituted a lien upon the property described until the amounts are paid. The total amount sought to be recovered is less than $10,000, the plaintiff having waived any amount in excess thus bringing the action within the Tucker Act already referred to.5
A Motion to dismiss was sustained by the writer upon the ground that the plaintiff was not a necessary party to the condemnation proceedings, that the United States did not have notice of the claim of lien by plaintiff by reason of the bonds when it instituted the action and that for these reasons the complaint stated no claim against the United States.6
The Court, however, held that plaintiff should show by proper amendments to his complaint that he had exhausted his remedies in the State Courts. Certain statements from the Court of Appeals' opinion may be quoted as bearing upon the legal problems involved. They are as follows:
Under California law, two remedies are provided for the lienholder, — (a) foreclosure by the City Treasurer9 and (b) action to foreclose the bond which is a separate, direct and cumulative remedy.10 As to these remedies, the Court of Appeals stated explicitly:
11
This statement cannot be questioned as the Government is urging us to do in this proceeding. The Court of Appeals was considering the sufficiency of the Complaint. While holding that the Complaint was deficient, it pointed to certain allegations which, if supplied, would warrant a trial on the merits. So doing, it referred to the remedies which were available to the plaintiff under the State law, had the condemnation not intervened. There is also good logic behind the conclusion of the Court of Appeals in this respect. For an action in condemnation is a forced sale.12
Be that as it may, these statements are a part of the law of the case and are binding on us in determining the matters before us. In his amended complaint, the plaintiff has alleged certain facts, some of which are admitted in the pretrial order. It is conceded that so far as the lots upon which the bonds were owned by the plaintiff, the Government and the City entered into a stipulation fixing their value in the sum of $4,577, and that a judgment was entered on December 10, 1947, fixing that sum as the just compensation for their taking.
On October 3, 1944, $1,777 had been deposited in the Registry of the court to apply to these parcels. On December 10, 1947, the Court entered an Order of Distribution awarding the compensation to Ruth L. Rubin, Carl Levy and Norman George Levy, less taxes in favor of National City, the County of San Diego and the State of California. No money was withheld in the condemnation proceedings for the payment of plaintiff's bonds on which, on February 9, 1943, the sum of $10,664.84 was due.
The amended complaint alleged that the plaintiff has no remedy either against the property under the State law or the fund which the Court had distributed in the condemnation proceeding. It is his contention, therefore, that his only remedy is to sue not for the value of the bonds, but for the value of the lots covered by his lien which he asserts to be in excess of the amount stipulated, and for which he seeks judgment.
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