Opinion
May 21, 1930.
Arthur H. Schwartz, Asst. U.S. Atty., of New York City.
Sanford H. Cohen, of New York City, for defendants.
Proceedings by the United States against Adams Gerberti and Frank Caliguiri in which Joseph Atteo, owner of a Studebaker sedan automobile, model 6014487, engine number 3754, moved for the return of the vehicle which was seized on January 22, 1930, while in the possession of Adams Gerberti and Frank Caliguiri, on the ground that the car was used for the transportation of two cases of intoxicating liquor.
Motion Denied.
The petitioner alleged that the occupants of the vehicle were not authorized to use the same for the transportation of intoxicating liquor, and, if the vehicle had so been used, it had been without the knowledge or consent of the moving party. The motion prayed for the return of the vehicle to the moving party. This motion was made in the criminal part, and was served upon the United States attorney. The petitioner was not named as a defendant in any pending action in the criminal case, nor had there been a libel filed whereby the court acquired jurisdiction of the vehicle. The District Attorney offered affidavits to show that there had been no libel filed and no service had upon the Prohibition Administrator.
Neither the petitioner nor the Prohibition Administrator is a party, nor has the latter been served. In these circumstances the court is without jurisdiction to grant the relief sought. See Lewis v. McCarthy (D.C.) 274 F. 496; In re Allen (D.C.) 1 F.2d 1020, 1021; Matter of Otto Behrens (2 C.C.A.) 39 F.2d 561.
Apparently, to date, the Prohibition Administrator has failed to take any steps with respect to the seized property now in his possession. For that reason the court will afford the petitioner opportunity to litigate his claim of rights if and whenever an appropriate remedy is invoked.
Motion denied, without prejudice to any other form of proceeding.