Doernhoefer v. United States , 194 F.2d 189 ( 1952 )

194 F.2d 189

DOERNHOEFER
v.
UNITED STATES.

No. 14263.

United States Court of Appeals Eighth Circuit.

February 8, 1952.

Motion to Modify Opinion Denied February 27, 1952.

Francis A. Casserly, St. Louis, Mo., for appellant.

George L. Robertson, U. S. Atty. and William J. Costello, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before WOODROUGH, THOMAS and JOHNSEN, Circuit Judges.

PER CURIAM.

1

This was an action by the United States for violation of the Veterans' Emergency Housing Act of 1946, 50 U.S.C.A.Appendix, § 1821 et seq., to compel restitution of amounts received for five houses over and above the maximum sales price. The complaint charged violation of Priorities Regulation 33, 10 Fed.Reg. 15301, as amended, 11 Fed.Reg. 6598. The trial court granted the relief demanded and this court affirmed, 190 F.2d 358.

2

The Act was repealed June 30, 1947. The five houses were sold by sales contracts entered into prior to that date and deeds given after June 30, 1947. In a Supplemental Petition for Rehearing filed in this court the appellant for the first time contends that because the deeds were not given until after June 30, 1947, the trial court was without jurisdiction. On December 11, 1951, the Supreme Court decided the case of United States v. Fortier et al., 342 U.S. 160, 72 S. Ct. 189. That decision sustains appellant's contention here; and on January 2, 1952, the Supreme Court denied certiorari, 72 S. Ct. 289, in United States v. Duvarney, 1 Cir., 185 F.2d 612, and in Sedivy v. Superior Home Builders, 7 Cir., 188 F.2d 729, both of which decisions are consistent with appellant's contentions. We cannot distinguish the present case from the cases thus considered and approved by the Supreme Court. The facts in the cited cases are practically the same as the facts in this case. Our opinion in this case is accordingly set aside, and the judgment appealed from is reversed.

3

Reversed and remanded with instructions to dismiss the complaint.