Opinion
Civ. No. 7786.
March 23, 1955.
J. Robert Patterson, Portland, Ore., for plaintiff.
C.E. Luckey, U.S. Atty., Eugene, Ore., for defendant.
On January 10, 1944, Ernest Demmler died in Washington County, Oregon. By his last will and testament, Ernest Demmler devised all of his property to his brothers and sisters, all of whom were citizens and residents of Germany.
On June 5, 1945, all of the interests of said enemy aliens were vested in the Alien Property Custodian, pursuant to the provisions of the Trading with the Enemy Act, 50 U.S.C.A.Appendix, § 1 et seq. (hereinafter referred to as the Act). On September 7, 1954, plaintiff filed with the defendant, as successor to the Alien Property Custodian, a claim for the return of such assets. Defendant has taken no action on the claim.
On November 25, 1954, plaintiff commenced this action under Section 9 of the Act. Defendant filed a motion to dismiss plaintiff's action on the ground that the court lacks jurisdiction of the subject matter for the reason that the action was not timely filed. Section 33 of the Act provides in part:
"No suit pursuant to section 9 may be instituted after April 30, 1949, or after the expiration of two years from the date of * * * vesting * * * whichever is later, but in computing such two years there shall be excluded any period during which there was pending a suit or claim for return pursuant to section 9 or 32(a) hereof."
Although on August 23, 1954, Section 33 of the Act was amended to extend the time for filing claims with the Attorney General from April 30, 1949, to February 9, 1955, the portion of the Act above quoted, relative to the commencement of actions, was not changed.
Section 33 as originally enacted and as amended is plain and unambiguous. Since the plaintiff failed to file an action within the time specified in such section, this court lacks jurisdiction to entertain this action.
The action is, therefore, dismissed.