Opinion
No. 1618.
March 17, 1927.
Wilkinson, Lewis Wilkinson, of Shreveport, La., for plaintiff.
Philip H. Mecom, of Shreveport, La., for defendant.
At Law. Action by Mrs. Alma Foster Atkins against J.O. Bender, Collector of Internal Revenue. On defendant's exception to citation, and want of jurisdiction. Exceptions overruled.
This is a suit against the collector of internal revenue for Louisiana, to recover the sum of $104,306.59, alleged to have been illegally collected as income taxes. The petition was filed September 29, 1926, and on October 15th of the same year the minutes of the court show an "order entered extending the time for filing answer to November 3d on motion of United States attorney." On November 8th exceptions to the citation and want of jurisdiction ratione personæ were filed.
These exceptions are now to be disposed of, and while it appears that Bender, collector, resides and is domiciled in the city of New Orleans, which is in the Eastern district of Louisiana, plaintiff contends that by appearing in open court on October 15th, and obtaining an extension of time "for filing answer," defendant thereby waived the right to question the citation or the jurisdiction of this court. The district attorney, on the other hand, takes the position that, since his duty to defend such suits is imposed by statute, he had no power to waive the citation or the jurisdiction, and besides the law itself allowed a period of 60 days within which to plead, and it was not necessary to obtain an extension.
Section 771 of the Revised Statutes provides: "It shall be the duty of every district attorney to prosecute, in his district, * * * to appear in behalf of the defendants in all suits or proceedings pending in his district against collectors, or other officers of the revenue, for any act done by them or for the recovery of any money exacted by or paid to such officers, and by them paid into the treasury." Comp. St. § 1296.
While the statute just quoted is the source of the district attorney's authority to prosecute or defend such cases, there is nothing therein limiting his power, or directing how it should be done. The action is a personal one against the collector, and the United States is not bound thereby, although, if the court, in rendering its judgment against the collector, should give a certificate of probable cause, the government might pay the judgment itself. Sage v. U.S., 250 U.S. 33, 39 S. Ct. 415, 63 L. Ed. 828.
I see no reason why the citation may not be waived in a case of this kind; and the other question is more properly speaking one of venue, for undoubtedly a federal court has jurisdiction to decide such matters. If timely urged, the defendant had the right to require that the suit be brought at his domicile; but this, in my opinion, was a privilege which he might waive, the same as any other defendant sued in a personal action.
I do not think the fact that the law allowed 60 days in which to plead makes any difference, as the appearance was made by the district attorney without reserving any right to urge the present exceptions. There is nothing in the law, as I see it, that would have prevented filing an answer or any other pleading immediately. It has been uniformly held that a general appearance for the purpose of obtaining an extension of time within which to plead, and especially for answering, constitutes a waiver of venue or jurisdiction in personam. Brookings State Bank v. Federal Reserve Bank (D.C.) 291 F. 659; Panama Railroad Co. v. Johnson (C.C.A.) 289 F. 981; Placek v. American Life Insurance Co. (D.C.) 288 F. 987; Stringfellow v. Nowlin Bros., 157 La. 683, 102 So. 869; Iddle v. Hamler, 132 La. 476, 61 So. 532; Whited Wheless v. Calhoun, 122 La. 112, 47 So. 415; State ex rel. Atkins Wideman v. Allen Barksdale et al., 50 La. Ann. 55, 22 So. 966; Ashbey v. Ashbey, 41 La. Ann. 141, 5 So. 546; J.M. Tupery v. T.H. Edmondson, 32 La. Ann. 1146.
My conclusion is that the defendant has waived the right to urge these exceptions, and the same are accordingly overruled.