United States v. Welch
| Decision Date | 14 May 1957 |
| Parties | UNITED STATES of America, Plaintiff, v. Francis C. WELCH and F. Murray Forbes, Jr., Executors of the Last Will and Testament of Donald T. Carlisle, Deceased, and Katherine V. Carlisle, Defendants. UNITED STATES of America, Plaintiff, v. Francis C. WELCH and F. Murray Forbes, Jr., Executors of the Last Will and Testament of Donald T. Carlisle, Deceased, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Paul W. Williams, U. S. Atty., New York City, Robert J. Ward, Asst. U. S. Atty., New York City, of counsel, for plaintiff.
J. Seymour Montgomery, New York City, for defendants.
The United States sues to recover sums of money allegedly refunded to defendants by mistake as erroneously collected income taxes.
On November 15, 1950, such a refund was made to Donald T. Carlisle and on July 7, 1950, two such refunds were made, one to Donald T. Carlisle and Katherine V. Carlisle jointly, and to Donald T. Carlisle alone.
Before the expiration of the two-year period of limitation prescribed by Section 3746(b) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 3746(b), i. e., on June 20, 1952, complaints in actions to recover these refunds were filed in the United States District Court, District of Massachusetts, the district wherein the defendants had filed their income tax returns for the years in question and where the refunds were made.
Process duly issued to the Marshal who attempted to serve the defendants but he was unable to find them in his district. Thereupon the United States investigated and learned that the defendants resided within the Southern District of New York.
On September 17, 1952, the two actions were transferred to this district but process was not issued to the Marshal here until July 31, 1953. Service was effected on the defendants on August 4, 1953.
The defendants now move for an order dismissing the actions because: (1) the transfers "to this Court from the District Court of the United States for the District of Massachusetts were improper, unauthorized, invalid, null and void, beyond the power of the District Court of the United States for the District of Massachusetts, and further, were not the act of said Court"; (2) the actions were "not commenced within the time limited therefor by Section 3746(b) of the Internal Revenue Code of 1939"; and (3) plaintiff allegedly failed "to prosecute the same or to comply with Rule 4(a) of the Rules of Civil Procedure 28 U.S.C.A. in that Plaintiff failed to act with due diligence in the issuance by the Clerk and service of process on the defendants."
The first branch of the motion is in two parts: one is a contention that the court does not have jurisdiction of the subject matter and the other is a contention that the purported orders of transfer were nullities being attempts of the clerk of the district court in Massachusetts to usurp the function of a judge.
The second part of the first branch of the motion is refuted by the affidavit of the clerk of that court certifying to the signature of Chief Judge George C. Sweeney endorsed on the motion papers, granting the motion for transfer of the actions to this court. This was done in conformity with the usual practice of that court.1 What the clerk did beyond that was purely the ministerial implementation of the judge's order.
As to the first part of the first branch of the motion this court has jurisdiction of the subject matter of the actions if (a) the Massachusetts District Court had jurisdiction of the subject matter and (b) the order of transfer was proper.
The District of Massachusetts and every other district court in the federal judicial system did have jurisdiction of the subject matter under Title 28 U.S. C.A. § 1345.2 However, venue was not properly laid in the District of Massachusetts.3 Neither defendant in these actions resided in the District of Massachusetts when the actions were commenced but, it is agreed by the parties, from 1946 to date the defendant Katherine V. Carlisle has resided in the Southern District of New York and her late husband, Donald T. Carlisle, resided in this district from 1946 until his death in 1956.
Obviously, the motion for a...
To continue reading
Request your trial
-
Goldlawr, Inc. v. Heiman
...statute based on Schiller has gained currency by virtue of repetition. Later cases supposedly following Schiller include United States v. Welch, D.C.S.D.N.Y.1957, 151 F. Supp. 899 (citing only Schiller); Orzulak v. Federal Commerce and Navigation Co., D.C.E.D.Pa.1958, 168 F.Supp. 15 (restin......
-
Hohensee v. News Syndicate, Inc.
...order, we need not decide." Thus, the court did not reach or have before it the question presented by this appeal. United States v. Welch, D.C.S.D.N.Y.1957, 151 F.Supp. 899, and Petroleum Financial Corp. v. Stone, D.C.S.D.N.Y.1953, 116 F.Supp. 426, also give the appellant little help, for t......
-
GOLDLAWR, INCORPORATED v. Shubert
...1069 (1955) (admiralty); Orzulak v. Federal Commerce & Navigation Co., D.C.E.D.Pa.1958, 168 F.Supp. 15 (admiralty); United States v. Welch, D.C.S.D.N.Y.1957, 151 F.Supp. 899; Petroleum Financial Corp. v. Stone, D.C.S.D.N.Y.1953, 116 F.Supp. 426; Lumbermens Mut. Cas. Co. v. Mohr, D.C.S.D.Tex......
-
Amerio Contact Plate Freezers, Inc. v. Knowles
...Inc. v. Thomsen, 4 Cir., 218 F.2d 514; Orion Shipping & Trading Co. v. United States, 9 Cir., 247 F.2d 755; United States v. Welch, D.C., 151 F.Supp. 899; Petroleum Financial Corp. v. Stone, D.C., 116 F.Supp. 426. It follows that in our opinion the court erred in granting appellee's motions......