Summary
In Woods v. Rose, 9 Cir., 171 F.2d 290, 291, this court, disapproving a dismissal of a similar action brought under the former Act, said: "The United States was at all times, and is now, the real party in interest".
Summary of this case from Pinsky v. United StatesOpinion
No. 11928.
November 17, 1948.
Appeal from the United States District Court for the Southern District of California, Central Division; Peirson M. Hall, Judge.
Action under the Emergency Price Control Act by Philip B. Fleming, Administrator of the Office of Price Controls, against Pearl Rose, for alleged violation of rent regulations. Tighe E. Woods, Housing Expediter, moved for substitution of himself as plaintiff, and such motion was granted but only after entry of judgment dismissing the action. From that judgment, Tighe E. Woods, Housing Expediter, appeals.
Judgment reversed and case remanded for further proceedings.
Ed Dupree, Gen. Counsel, Hugo V. Prucha, Asst.Gen. Counsel, and Nathan Siegel, Sp. Lit. Atty.; Office of Housing Expediter, Office of Gen. Counsel, all of Washington, D.C., for appellant.
Hiram T. Kellogg, of Los Angeles, Cal., for appellee.
Before MATHEWS and STEPHENS, Circuit Judges, and DRIVER, District Judge.
On April 18, 1947, Philip B. Fleming, Administrator of the Office of Price Controls, brought an action on behalf of the United States against appellee, Pearl Rose, under § 205(a) and (e) of the Emergency Price Control Act of 1942, as amended, 50 U.S.C.A.Appendix, § 925(a) and (e), for the violation of rent regulations issued under § 2 of the Act, 50 U.S.C.A.Appendix, § 902.
See Executive Order No. 9809, 11 F.R. 14281, 50 U.S.C.A.Appendix, § 601 note.
On April 23, 1947, Administrator Fleming's functions with respect to rent control were transferred to Frank R. Creedon, Housing Expediter, who moved for the substitution of himself as plaintiff in Fleming's place and stead. That motion was made and denied on September 9, 1947.
See Executive Order No. 9841, 12 F.R. 2645, 50 U.S.C.A.Appendix, § 601 note.
Thereupon appellee moved to dismiss the action. Indicating that that motion would be granted, the court, on September 9, 1947, directed appellee's counsel to prepare a "form of dismissal," meaning, obviously, a form of judgment dismissing the action.
On December 3, 1947, appellant, Tighe E. Woods, who had succeeded Creedon as Housing Expediter, moved for the substitution of himself as plaintiff in Fleming's place and stead. That motion was granted on March 17, 1948. Before granting it, however, the court, on February 10, 1947, entered a judgment dismissing the action. From that judgment this appeal was taken on April 5, 1948.
The judgment dismissed the action pursuant to appellee's motion, the ground of which was that Fleming was no longer the real party in interest, was no longer the Administrator of the Office of Temporary Controls and was no longer empowered to maintain the action.
This was not a valid ground of dismissal. The United States was at all times, and is now, the real party in interest. Fleming was a nominal party only. Appellee's motion should have been denied.
United States v. Koike, 9 Cir., 164 F.2d 155; United States v. Hirahara, 9 Cir., 164 F.2d 157; Fleming v. Findlay, 9 Cir., 165 F.2d 79.
Judgment reversed and case remanded for further proceedings.