United States v. Jenkins, Civ. No. 822.

• Court: United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
• Citation: 141 F. Supp. 499
• Docket Number: Civ. No. 822.
• Parties: UNITED STATES of America, Plaintiff, v. Wilson JENKINS, Defendant.
• Decision Date: 02 May 1956

141 F. Supp. 499

UNITED STATES of America, Plaintiff, v. Wilson JENKINS, Defendant.

Civ. No. 822.

United States District Court S. D. Georgia, Savannah Division.

May 2, 1956.

William C. Calhoun, U. S. Atty., Augusta, Ga., and Joseph B. Bergen, Asst. U. S. Atty., Savannah, Ga., for plaintiff.

John J. Bouhan and Samuel A. Cann (of Bouhan, Lawrence, Williams & Levy), Savannah, Ga., for defendant.

SCARLETT, District Judge.

A motion for summary judgment by plaintiff in the above-styled case has been considered by the Court after oral arguments by both parties and after consideration of briefs submitted by both parties on the points in question.

It appears that the captioned action was brought by the plaintiff on September 7, 1955, to revive a dormant judgment against the defendant, who was sentenced in this court on November 18, 1932, for violations of the National Prohibition Act, 27 U.S.C.A. The defendant at that time was duly sentenced to serve a term of two years in the United States Penitentiary and pay a fine of $10,000, the defendant to stand committed until said fine was paid or until otherwise discharged by law.

The defendant served his minimum sentence under law, plus some forty-two days, inasmuch as the $10,000 fine was not paid. The defendant certified that he was a pauper and was unable to pay said fine and after serving the statutory thirty days in addition to the sentence applied for discharge under the provisions of Section 1042, Revised Statutes of the United States.¹ Based on the forma pauperis petition the defendant was released from the custody of the Attorney General.

Execution was subsequently issued on said fine judgment and was recorded on the General Execution Docket in the office of the Clerk of the Superior Court of Chatham County, Georgia, on June 11, 1937. The judgment referred to has lain dormant since June 11, 1944.

The defendant filed a timely motion to dismiss the Government's action to revive the judgment based on the above fine alleging that the action is barred by the provisions of Title 28, of the United States Code Annotated, Fed.Rules Civ. Proc. rule 69, which states in part:

"The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held, existing at the time the remedy is sought, except that any statute of the United States governs to the extent that it is applicable."

The defendant in his motion pointed out that Georgia Code, § 110-1002, requires that a dormant judgment be sued on within three years of the time it becomes dormant, and, therefore, alleged that the Government's action was barred.

The defendant after filing his original motion to dismiss filed an amended motion to dismiss by leave of the Court which re-stated the grounds in the original motion and raised the additional point that the defendant served forty-five days according to defendant's affidavit attached to the amendment in addition to his two years sentence in lieu of the fine of $10,000, and that he has, therefore, satisfied whatever fine was due by his confinement to the penitentiary for forty-five days.

After the defendant filed his amended motion to dismiss the defendant filed a document entitled "Supplementary Brief of Defendant", which was accepted as an additional amendment to the defendant's motion to dismiss in so far as it raised for the first time the point that the Scire Facias suit by plaintiff to revive the dormant judgment in question cannot now be obtained since the Prohibition Act ceased to be in effect by virtue of the ratification of the 21st Amendment prior to the filing of the suit to revive a dormant judgment based on a criminal fine imposed for violating the Act.

The Court on January 9, 1956, denied the defendant's motion to dismiss, as amended and supplemented, after due consideration of briefs filed by both parties, and accordingly an order was entered on January 10, 1956, determining each and every point raised by the defendant.

On January 18, 1956, a timely answer was filed by defendant admitting that the defendant was fined $10,000 as alleged in the plaintiff's suit and that the fine has not been paid. However, the defendant denies liability at this time and by way of affirmative defense re-states the same grounds raised in his prior motion to dismiss, as amended and supplemented, and separately listed as affirmative defenses two of the arguments previously employed in his briefs to support the motion to dismiss; namely, that a scire facias proceeding is a supplementary action, and not an original action, on the judgment barred by State law and as such is precluded by State law, and that irrespective of whether the Government may still revive the judgment by scire facias on the judgment, it still will be without any method of enforcement of a judgment rendered thereon because by Rule 69(a), 28 U.S.C.A., the issuance of any execution thereon would necessarily have to be in conformity with the State law which makes no provision for such a situation.

The plaintiff on January 25, 1956, moved this Court for a summary judgment after filing proper notice in accordance with provisions of Rule 56 of the Federal Rules of Civil Procedure on the ground that the pleadings and rulings of this Court, which were attached as exhibits, show that the defendant has admitted the facts upon which the plaintiff's suit is based and that each and every defense pleaded in defendant's answer had been denied by this Court in ruling upon defendant's motion to dismiss. Thereafter the defendant filed an objection to plaintiff taking summary judgment re-stating once again the defenses previously raised in his answer. The defendant then amended his objection to plaintiff taking summary judgment by raising a constitutional question on the point previously raised by him that the fine is not collectible because he served forty-five days in addition to his two years sentence by stating that since no allowance was made for the fifteen days he was imprisoned over the thirty days as required by law, a judgment for the fine at this time would be an excessive fine in violation of the Eighth Amendment of the United States Constitution, and that such a judgment would deprive him of his property without due process of law in contravention of the Fifth Amendment of the United States Constitution and in contravention of the Fourteenth Amendment of the United States Constitution, in that the judgment would have to be enforced by execution through the State court and this amendment would prohibit action in the State court on such a judgment since it provides that no State shall enforce any law which shall abridge the privileges or immunities of the citizens of the United States, nor shall any State deprive any person of his property without due process of law.

Thereafter, the plaintiff by leave of Court and pursuant to Rule 56(e) of the Federal Rules of Civil Procedure, supplemented its motion for summary judgment by filing an affidavit executed by the present warden of the institution where the defendant was confined affirming that the minimum expiration date of the defendant's sentence was January 31, 1935 and that on March 2, 1935, the defendant would have served a total of 30 days for non-payment of fine as required by law. The affidavit further states that the United States Commissioner directed that the defendant be discharged from further imprisonment on the 12th day of March 1935, and that the defendant was discharged on March 14, 1935, after transportation had been secured. The affidavit was supported by a photostat of a verified notice to the United States Commissioner for the district that the defendant would make application for discharge on March 3, 1935 under Section 1042, Revised Statutes of the United States, and a photostat of a Certificate of Discharge of Poor Convict dated March 12, 1935, ordering the defendant to be discharged on March 12, 1935.

The defendant by leave of court then amended all of his pleadings to acknowledge that he was released from imprisonment in March 1935 after serving 42 days subsequent to the minimum expiration date of his two year sentence.

Conclusions of Law

This Court is of the opinion that the plaintiff's motion for summary judgment should be sustained for the reasons stated in the opinion rendered in the order denying defendant's motion to dismiss which shall be reiterated herein and for the reason that the defendant's latest approach to the points previously raised does not alter the Court's opinion that they are without merit as will be shown in the conclusions of law herein.

In regard to the allegation that the instant action is barred by the provisions of Title 110, Section 1002 of the Georgia Code, it is well settled that a statute of limitations does not run against the Government unless such a statute has been specifically enacted by Congress to bar suit by the Government in a particular type case. See Guaranty Trust Co. v. United States, 1938, 304 U.S. 126, 132-135, 58 S.Ct. 785, 82 L.Ed. 1224; United States v. Mack, 1935, 295 U.S. 480, 489, 55 S.Ct. 813, 79 L.Ed. 1559; Grand Truck Western Railway Co. v. United States, 1920, 252 U.S. 112, 121, 40 S.Ct. 309, 64 L.Ed. 484; Davis v. Corona Coal Co., 1924, 265 U.S. 219, 222, 44 S.Ct. 552, 68 L.Ed. 987; Chesapeake & Delaware Canal Co. v. United States, 1919, 250 U.S. 123, 125, 39 S.Ct. 407, 63 L.Ed. 889; Societe Suisse, etc. v. Cummings, 69 App.D.C. 154, 99 F.2d 387, 395; United States v. Nashville, C. & St. L. Railway Co., 1886, 118 U.S. 120, 125, 6 S.Ct. 1006, 30 L.Ed. 81. That very question which is at issue in the instant case was decided in the case of United States v. Houston, D.C., 48 F. 207-210. The Court in discussing this point ruled that a State statute requiring that actions against executors and administrators...