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UNITED STATES v. KERN

September 26, 1934

UNITED STATES
v.
KERN et al., and four other cases



The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

The five above-entitled actions are civil actions brought by the United States of America, on bonds given in support of permits to use specially denatured alcohol, in manufacturing approved preparations of the National Prohibition Act (27 USCA).

These cases come before the court on motions to sustain their pleas of the statute of limitations and to dismiss the complaints as to the Eagle Indemnity Company and the Royal Indemnity Company.

 The defendants Eagle Indemnity Company and Royal Indemnity Company interposed motions to dismiss because the complaints failed to allege facts sufficient to state causes of action, and also interposed pleas of the statute of limitations.

 The motions to dismiss were granted, but the plaintiff was allowed to file amended complaints, which plaintiff did, and it is to the amended complaints that the said defendants Eagle Indemnity Company and Royal Indemnity Company have interposed the plea of the statute of limitations.

 The dates upon which the plea of the statute of limitations is based appear in each particular case as follows:

 United States of America v. Dr. George F. Kern and Eagle Indemnity Company, L. 5740.

 Suit was commenced on the 27th day of April, 1933.

 The amended complaint avers accrual of cause of action between the 1st day of March, 1927, and the 31st day of December, 1927. (See paragraphs 13, 19, and 23 of the amended complaint.)

 If the five-year statute applies, the cause of action was barred December 31, 1932.

 United States of America v. Boris Borovikow, Principal, and Royal Indemnity Company, Surety, L. 5824.

 Suit was commenced on June 4, 1933.

 The amended complaint avers accrual of cause of action between the 1st day of January, 1927, and the 18th day of January, 1928. (See paragraphs 14, 20, and 24 of the amended complaint.)

 If the five-year statute applies, the cause of action was barred January 18, 1933.

 United States of America v. Meyer Greenberg, Doing Business as M. G. Laboratories, and Eagle Indemnity Company, L. 5735.

 Suit was commenced on the 25th day of April, 1933.

 The amended complaint avers accrual of cause of action as up to and including the 31st day of January, 1928. (See paragraphs 10 ...


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