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UNITED STATES v. ELLIOTT

April 26, 1939

UNITED STATES
v.
ELLIOTT



The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

This is a suit to collect Income Taxes and Interest assessed against the defendant, John Speed Elliott, for the years 1925, 1926, 1928 and 1934, in the amount of $6,618.15 together with interest thereon.

This action was brought on the Law side of the Court, but on the trial, a Jury was waived, and the action was tried before the Court, without a Jury.

 The first cause of action is for interest on taxes due for the year 1925, which I will hereinafter discuss.

 The second cause of action is for Income Taxes for the year 1926.

 The third cause of action is for Income Taxes for the year 1928.

 As to the second and third causes of action, the defendant claims that the assessments were not timely made, but the documentary evidence, offered on behalf of the plaintiff, clearly establishes the plaintiffs' right to recover, and that the defendants' claim has not been sustained.

 The fourth cause of action is for Income Taxes for the year 1934, and as to that, the defendant admitted on the trial, that he has no defense, and the right of the plaintiff to recover on that cause of action is sustained by the documentary evidence offered by the plaintiff on the trial.

 This leaves for consideration only the first cause of action, and as appears by the evidence the last day to institute suit for the collection of the assessment for the year 1925, was the 28th day of July, 1937.

 A Summons and Complaint, in this action, was filed with the Clerk of the United States District Court for the Eastern District of New York, on July 21, 1937, and the Summons was issued to the United States Marshal on that day, and it was on the same day that he delivered it to the United States Deputy Marshal for service. This was seven days before the last day on which the action could be commenced.

 As appears from the testimony of the United States Deputy Marshal to whom the Summons and Complaint were delivered for service, she attempted to make personal service of the Summons and Complaint on the defendant on July 21, 1937, July 22, 23, and 25, 1937. In each instance the attempted service was made at the home of the defendant on Cedar Swamp Road, Glen Cove, Long Island, New York. She inquired of the neighbors, as to where the defendant could be located, and was told that he was in Blue Ridge, Summit, New Jersey, for the Summer months. It also appears from her testimony that an alias Summons was issued on October 4, 1937, and that three times thereafter, on October 4, 6, and 10, 1937, she made an effort to serve the defendant, and that on the 10th day of October, 1937, she made inquiry at the Post Office and was told that some mail was coming there for the defendant, and that occasionally it would be picked up, but by whom, no one knew. She also testified that there were no signs of occupation of the defendant's home in Glen Cove, Long Island, New York, except that there was a dog around the premises. It also appears from her testimony that she made attempts to serve the defendant at his said home on January 5, 12, 20 and 25, 1938, but without success. It also appears that she finally discovered that the defendant's mail was being sent to 111 Broadway, New York City, and that she caused the Summons and Complaint to be transferred to the United States Marshal's Office, in the Southern District of New York, in March 1938, after she had made her last effort to serve the defendant at his said home on February 25, 1938.

 A Summons and Complaint were personally served on the defendant, on March 2, 1938.

 There is no question raised, by the defendant, as to the merits of the first cause of action. The only issue presented is whether or not the first cause of action was timely commenced.

 Prior to the promulgation of the Rules of Civil Procedure, which became effective on September 16, 1938 (rule 86, 28 U.S.C.A. following section 723c), and which have no application in this case, the time of commencement of a Civil action at Law was controlled by the provisions of the New ...


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