Summary
In Mecartney v. Hoover, 7 Cir., 151 F.2d 694, this Court under circumstances quite similar to those here affirmed an order setting aside the service on the defendants for the reason that it was not in compliance with the Federal rules. Plaintiff seeks to distinguish that case on the basis that the Court was without venue while in the instant case it has venue by reason of 28 U.S.C.A. Sec. 1391(e).
Summary of this case from Rabiolo v. WeinsteinOpinion
No. 8820.
November 2, 1945.
Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; Philip L. Sullivan, Judge.
Action by Newell Mecartney against John Edgar Hoover and Francis Biddle for damages arising out of an alleged illegal arrest and false imprisonment, and for defamation of plaintiff's character. Defendants appeared specially and moved to set aside the service of the summons and complaint. The motion was granted, and plaintiff appeals.
Affirmed.
Newell Mecartney and William J. Powers, both of Chicago, Ill., for appellant.
J. Albert Woll, U.S. Atty., of Chicago, Ill., for appellees.
Before EVANS, SPARKS, and KERNER, Circuit Judges.
Plaintiff sought to sue the defendants, individually, and not as government officials, for damages arising out of an alleged illegal arrest and false imprisonment and for defamation of his character. He attempted to serve the summons and complaint on said defendants by service on the United States District Attorney for the Northern District of Illinois by leaving a copy with the assistant United States District Attorney in Chicago. Both defendants live in Washington, D.C.
Defendants appeared specially and moved to set aside the service.
The court granted their motion.
The Rules and the decisions made the ruling of the District Court imperative. Rule 4(d)(1) of the Rules of Civil Procedure for the District Courts of the United States, 28 U.S.C.A. following section 723c; Robertson v. Railroad Labor Board, 268 U.S. 619, 622, 45 S.Ct. 621, 69 L.Ed. 1119; Nesbit Fruit Products, Inc. v. Wallace et al., D.C., 17 F. Supp. 141, 143; Blank v. Bitker, 7 Cir., 135 F.2d 962, 965; Title 28 U.S.C.A. § 112(a).
The order setting aside the service is affirmed.