with the Enemy Act, the United States is only the nominal plaintiff, suing for the benefit of private persons, and therefore the rule that the statute of limitations will not bar an action by the United States does not apply.
This precise point has been decided adversely to defendant's contention. In Cummings v. Deutsche Bank, 300 U.S. 115, 120, 57 S. Ct. 359, 362, 81 L. Ed. 545, the Supreme Court stated in reference to enemy property seized under the Act: 'The title acquired by the United States was absolute and unaffected by definition of duties or limitations upon the power of the Custodian or the Treasurer of the United States.'
And further: 'As the taking left in enemy owners no beneficial right to, or interest in, the property, the United States did not take or hold as trustee for their benefit.'
In Societe Suisse v. Cummings, 68 App.D.C. 154, 99 F.2d 387, 395, (certiorari denied Societe Suisse v. Murphy, 306 U.S. 631, 59 S. Ct. 463, 83 L. Ed. 1033) the Court stated: 'We think there is no basis for the claim of laches on the part of government. No rule is better established than that the United States are not bound by limitations or barred by laches where they are asserting a public right. * * * Here the United States are not seeking the return of money unlawfully paid 'as a mere conduit of title for private persons', as counsel suggest. The property and money delivered to Swiss Corporation in 1921 was, in our opinion, enemy property, and it is settled that under the Trading with the Enemy Act enemy property after seizure belonged to the United States to be disposed of as they pleased * * * .'
Since the government acquired an absolute title, leaving in the enemy owners no beneficial right or interest, it cannot be said that the United States is not the 'Real party in interest'. The defense of the statute of limitations or of laches is not, therefore, available to this defendant.
The defendant urges, as a seventh ground for dismissal, that the Government did not rely on alleged misrepresentation of the defendant, but over a long period of time made its own investigation. This contention was similarly urged in support of the second ground and needs no further comment.
Finally, the defendant as his eighth ground, contends that the president exercised discretionary powers in allowing Hackfeld's claim and that such determination is not open to surmise, re-examination, or collateral attack, but is final, conclusive and not reviewable by the courts.
The question of the conclusiveness of prior presidential allowances has been considered in several recent decisions. Cummings v. Societe Suisse, supra; Isenberg v. Biddle, 75 U.S.App.D.C. 100, 125 F.2d 741, and again in United States v. Rodiek, supra. It is to be noted that in each of these cited cases, the court ultimately based its determination that a presidential allowance might be re-opened on the ground that the claimant invited such re-examination when suit was filed for an increased allowance by the recipients. In so doing, however, the courts in each instance indicated that such re-examination by judicial review would not be foreclosed by any assumed conclusiveness even were there not a prior re-opening by the claimant himself.
In Cummings v. Societe Suisse, supra, the court expressed the view that it seemed wholly unwarranted to claim that the United States are bound by their former action or that the president's findings so foreclosed the controversy that it was no longer the subject of judicial review and stated further: 'The government is never bound by the unlawful action of its officers; nor is it estopped by the acts of its agents in entering into an agreement or arrangement to do or cause to be done what the law does not sanction or permit.'
The same ground was urged in Swiss Nat. Ins. Co. v. Crowley, 78 U.S.App.D.C. 1, 136 F.2d 265. In that case the court reiterated and approved the portion of the opinion above quoted.
In Isenberg v. Biddle, supra, the same argument was made and the court therein indicated its belief that a presidential finding is not so conclusive as to preclude subsequent challenge or correction in an independent action. Moreover, it is a well settled rule that administrative determinations in matters relating to payment of public funds are never final. Thus in Wisconsin Central R. Co. v. United States, 164 U.S. 190, 205, 17 S. Ct. 45, 50, 41 L. Ed. 399, the Supreme Court said: ' * * * whatever the conclusiveness of executive acts, so far as executive departments are concerned as a rule of administration, it has long been settled that the action of executive officers in matters of account and payment cannot be regarded as a conclusive determination, just brought in question in a court of justice.'
It must be remembered as well in this case that Rodiek, as ancillary executor of the Hackfeld estate, prosecuted a claim in the Court of Claims seeking an additional allowance beyond that granted under the presidential determination, thereby in effect opening such determination to attack.
However, I do not find it essential that there be such a prior re-opening of an allowance. As stated above, in matters of account and payment, an executive determination cannot be regarded as conclusive when brought in question in a court of justice.
Where fraud is charged there is cogent reason to re-open the allowance and ample authority under which may be found the power to do so.
One point remains upon which brief comment should be made. Defendant asserted as a further ground in support of his motion, the argument that the plaintiff has received in satisfaction of its judgment against the ancillary executor, the defendant's joint tort feasor, an amount in excess of the claim for damages asserted against Silliman in this proceeding. This, it is urged, is satisfaction of the liability of all alleged joint tort feasors.
Defendant has made no argument in his supporting briefs in support of this ground. However, since comment was made thereon in the oral argument on this motion, it may not be assumed to be abandoned and will be commented on briefly.
The demand for damages herein is in the amount of $ 910,376.77. The amount of the judgment entered against Rodiek as ancillary executor of the Hackfeld estate was in the sum of $ 1,604,632.45. This judgment, plus interest thereon, however, amounted to the sum of $ 2,093,510.48. Of this total, there presently remains an unsatisfied total of $ 1,052,798.39, an amount exceeding the total amount sought in this suit. There has not, therefore, been either full or partial satisfaction sufficient to bar full recovery against this defendant.
Defendant's motion, in view of the conclusion above stated, must be denied.
The government has filed a counter motion to have the separate defenses stricken as insufficient in law under Rule 12(d), 28 U.S.C.A.following section 723c. Since defendant's separate defenses present the same questions of law as those in this motion, the motion to strike is allowed.
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