The opinion of the court was delivered by: BYERS
The claimant, C.I.T. Corporation, moves for an order directing the United States Government to pay to petitioner the amount of its lien and for further order that the mandate of the Circuit Court of Appeals of December 29, 1937, be made the order of this court. The question presented by the motion is of such practical scope that a brief statement thereof seems to be required.
The Government filed a libel of information on December 10, 1936, reciting the seizure on September 29, 1936, by investigators of the Alcohol Tax Unit of the above-described motor vehicle; that the latter became forfeit under the provisions of the applicable statutes, and sought a decree that it be condemned and sold pursuant to law.
On January 11, 1937, the claimant intervened and filed a claim and answer.
On April 14, 1937, a motion was made for a decree of forfeiture, which was granted on May 13, 1937.
There was a cross motion for remission and mitigation, which was denied at the same time. Thus the claimant sought advantage of the provisions of 27 U.S.C.A. § 40a, and failed.
By notice of appeal filed June 4, 1937, the matter was taken to the Circuit Court of Appeals, where the decree of this court was reversed (United States v. C.I.T. Corporation, 2 Cir., 93 F.2d 469), the date of the opinion being December 13, 1937.
The mandate was filed December 30, 1937, and contains the following: "It is hereby ordered, adjudged and decreed That the decree of said District Court be and it hereby is reversed with instructions to remit the forfeiture." Apparently no order on mandate has yet been signed.
The affidavit upon which the present motion is based recites that the automobile was appraised at $750.00 on September 29, 1936, the date of the seizure, and that is value on January 26, 1938, was $350.00; that the amount of the claimant's lien is $527.24 with interest from October 21, 1936.
The claimant seeks a direction that the Government pay to the petitioner the amount of its lien, pursuant to 40 U.S.C.A. §§ 304j, 304k.
Two affidavits have been filed in opposition; one recites: "That subsequent to the filing of the aforementioned decree of May 24, 1937, said car was delivered to the Treasury Department, Bureau of Internal Revenue, pursuant to said decree."
The date of the said delivery is not disclosed.
It is argued in that affidavit that the depreciation in value is due to the lapse of time and not to the use of the vehicle, and that there is no reason why the Government should pay to the claimant the amount of its lien; that the car is available and will be returned to the claimant upon the delivery of the order on mandate; that the latter ordered the forfeiture to be remitted but did not direct that the lien of the claimant be paid for by the Government.
A supplemental affidavit of February 11, 1938, contains an appraisal of the present value of the vehicle in the sum of $400.00. That ...