Joyce v. United States
98 Ct. Cl. 427
Ct. Cl.
1943
Check Treatment

The facts sufficiently appear from the opinion per curiam, as follows:

The plaintiff sues to recover income taxes alleged to have been erroneously collected for the year 1934. The defendant on September 16, 1942, filed a plea alleging *428that at 'the timé this suit was filed and ever, since there has heen pending' against Frank F. Gentsch, Collector of Internal -Revenue at Cleveland, Ohio, a suit on the same cause of' action and that when the cause- of action arose the said Gentsch was acting under the authority of the United States. ItJ'thdreforej asks that this suit be dismissed.

Copy of this plea was mailed plaintiff’s attorneys on September 16,1942, which raises a presumption of service. (Rule 83 (c) ), and no reply thereto has been made. Thé case was placed on the law calendar for hearing on the plea under rule 86, but the plaintiff did not appear when the cas'eWás hailed. . The allegations of the. plea, therefore, must be taken as confessed.

Section 154 of the Judicial Code prohibits the prosecution of a suit in this court while there- is pending in any other court a suit against a person who at the time the cause of action arose was acting or professing to act in respect thereto under the authority of the United States. The defendant’s plea is sustained and this suit, therefore, must be dismissed. It is so ordered.