United States v. Albert Holman Lumber Co.
| Decision Date | 10 November 1953 |
| Docket Number | No. 14310.,14310. |
| Citation | 208 F.2d 113 |
| Parties | UNITED STATES v. ALBERT HOLMAN LUMBER CO. et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Charles S. Lyon, Acting Asst. Atty. Gen., H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack, Sp. Asst. to Atty. Gen., Fred E. Youngman, Asst. Atty. Gen., A. F. Prescott, Asst. Atty. Gen., Harvey M. Spear, Asst. Atty. Gen., John D. Hill, U. S. Atty., W. R. Bradford, Asst. U. S. Atty., Birmingham, Ala., for appellant.
Henry Holman Mize and Joseph G. Burns, Tuscaloosa, Ala., for appellee.
Before HUTCHESON, Chief Judge, and BORAH and RUSSELL, Circuit Judges.
The petition for rehearing by the appellant claims that our opinion in the above entitled cause misquoted the opinion of the Supreme Court in United States v. Gilbert Associates, 345 U.S. 361, 73 S.Ct. 701, and to the extent that our decision is based on the erroneous quotation it is contrary to law and cannot be supported. It is accordingly argued that our decision is not only erroneous in this particular but that there is no authority for holding contrary to United States v. Security Trust & Sav. Bank, 340 U.S. 47, 71 S.Ct. 111, 95 L.Ed. 53, that the materialmen's liens here involved are entitled to priority over the tax liens of the United States, under the doctrine of first in time, prior in right. These and the other contentions of appellant have received our careful consideration.
In our opinion of August 25, 1953, we quoted from United States v. Gilbert Associates, supra, the following sentence, "Without more, priority would depend upon the dates the liens arose." This sentence precisely as quoted appeared in the Supreme Court's published opinion which was released on April 6, 1953, and was thus reported in 21 United States Law Week p. 4275 and other legal services. We now find that the above quoted sentence together with the sentence which immediately preceded it have been deleted from the Supreme Court's previously published opinion by authority of the Court. Accordingly, and to meet this change, it is ordered that the opinion heretofore filed in the instant case be amended by deleting from the paragraph beginning at the bottom of page nine of the slip opinion 206 F.2d 689 these words:
"The court in speaking of the priority rights of the respective general lien claimants said that `Without more, priority would depend upon the dates the liens arose.\' (Emphasis supplied.)"
As to appellant's second point we do not at all agree that the Security Bank case is an authority here. The question there presented was whether a federal tax lien was prior in right to an attachment lien on property in California...
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...States v. Liverpool & London & Globe Ins. Co., supra; United States v. Albert Holman Lumber Co., 5 Cir., 206 F.2d 685, rehearing denied 208 F.2d 113. Application of that test to the undisputed facts of this case establishes that the tax liens of the United States were first in time and, the......
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United States v. Liverpool & London & Globe Ins. Co.
...principles and we adhere to the views therein expressed. United States v. Albert Holman Lumber Co., 5 Cir., 206 F.2d 685, rehearing denied 208 F.2d 113. The only remaining issue is whether the District Court erred in allowing an attorney's fee to the appellee insurance company. As to this l......
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United States v. Morrison
...must be determined by other considerations, United States v. Albert Holman Lumber Co., 5 Cir., 206 F.2d 685, modified on rehearing, 5 Cir., 208 F.2d 113; Macatee, Inc. v. United States, 5 Cir., 214 F.2d 717, the principal factor being that the lien which is first in time is first in right, ......
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