121 F.2d 28 | D.C. Cir. | 1941
R.S. § 5438
Appellant brought this action in the court below against John H. Fahey and others, who at the time in question were either members or executive officers of the Federal Home Loan Bank Board, to recover
This brief narrative is sufficient to show that the purpose of the suit is to recover on behalf of the United States double the amount of money paid for stock of the Home Owners’ Loan Corporation, on the theory that there is no such legal corporation and that the money had been secured by the false and fictitious claim of the defendants that the corporation had been properly and legally incorporated. The trial court dismissed the complaint on the authority of Fletcher v. Jones, 70 App.D.C. 179, 105 F.2d 58, certiorari denied 308 U.S. 555, 60 S.Ct. 116, 84 L.Ed. 467.
In this court appellant contends that it takes the act of a sovereign power to create a corporation, that the statute does not authorize the Board to issue a charter, and that the Board could create the Home Owners’ Loan Corporation only by obtaining a charter from the District of Columbia or some state.
We find no merit in the contention and think the lower court was quite correct in holding the case controlled hy the Jones decision. There the same plaintiff as here sought to recover possession of realty on a resulting trust, on the ground that the beneficiary in a deed of trust was the Home Owners’ Loan Corporation, which it was alleged did not exist. We examined the statute and held that Home Owners’ Loan Corporation had been properly organized according to law and had complete corporate existence. We now adhere to all that we said there.
Appellant also argues that the complaint could not be “dismissed” without the written consent of the judge and of the United States Attorney, required by R.S. § 3491 before actions of this nature, once filed, may be “withdrawn or discontinued”. This point, too, we think without merit. The action of the court was on a motion to dismiss for failure to state a cause of action. This was a proper defense, and the prohibitions of the statute were intended to reach a wholly different situation.
Affirmed.
Now reproduced in amended form in 18 U.S.C.A. § 80, cf. United States ex rel. Kessler v. Mercur Corp., 2 Cir., 83 F.2d 178, certiorari denied 299 U.S. 576, 57 S.Ct. 40, 81 L.Ed. 424.
31 U.S.C.A. §§ 231, 232, 234.
48 Stat. 129, 12 U.S.C.A. § 1463(a).