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MONGE v. SMYTH

No. 30684.

100 F.Supp. 821 (1951)

MONGE v. SMYTH, Collector of Internal Revenue.

United States District Court N. D. California, S. D.

October 15, 1951.

Attorney(s) appearing for the Case

Wareham C. Seaman and Seaman & Dick, all of Stockton, Cal., for plaintiff.

Chauncey Tramutolo, San Francisco, Cal., Paul E. Anderson, Special Atty., San Francisco, Cal., for Bureau of Internal Revenue.

Macklin Fleming, Asst. U. S. Atty., San Francisco, Cal., for defendant.

OLIVER J. CARTER, District Judge.

The court has before it two motions, the plaintiff's motion to strike the affidavit of Henry M. Sorrell and the defendant's motion to dismiss the complaint.

The plaintiff's motion to strike is granted because in an effort to force a summary trial a party may not use affidavits controverting the allegations of the complaint in connection with a motion to dismiss. Dwyer v. Tracey, D.C., 10 F.R.D. 115.

The defendant's...

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