United States v. Melvin A. Pixley, D/B/A Furniture Freight Forwarders And/or Furniture Fast Freight, a Corporation

The United States seeks restitution for overpayment of freight charges. Suit was brought in the District Court under 28 U.S.C. § 1345 . Judgment was rendered by the District Court dismissing the action for lack of jurisdiction.

Between July 3, 1943, and October 10, 1947, appellees transported goods for the United States between points in California. Following deliveries, bills were submitted by appellees and were paid by the United States. As a common carrier, appellees’ tariff rates, pursuant to California law, were on file with the California Public Utilities Commission. All of the *587 shipments which concern us were made on government bills of lading which provided that shipments were to move at the lowest tariff rates applicable to similar shipments by private shippers.

Upon audit by the General Accounting Office, overpayments in the sum of $17,666.77 were found. In September, 1952, the United States made demand for refund. On August 8, 1956, appellees denied all claims and on April 9, 1958, this suit was brought for the amount of overpayment.

This being a civil action brought by the United States, jurisdiction of the District Court is conferred by 28 U.S.C. § 1345 . The…

dissents, believing that appellant’s present position in this Court to assert common law rights not contended for in the pretrial proceedings before the District Court, should be; foreclosed, per Rule 16, F.R.Civ.P. 28 U.S.C.A.

285 F.2d 586 UNITED STATES of America, Appellant, v. Melvin A. PIXLEY, d/b/a Furniture Freight Forwarders and/or Furniture Fast Freight, a corporation, Appellee. No. 16618. United States Court of Appeals Ninth Circuit. Dec. 6, 1960. George C. Doub, Asst. Atty. Gen., Morton Hollander, Howard E. Shapiro, Attorneys, Department of Justice, Washington, D.C., Laughlin E, Waters, U.S. Atty., Los Angeles, Cal., for appellant. Turcotte & Goldsmith, Jack O. Goldsmith, Los Angeles, Cal., for appellee. Before CHAMBERS and MERRILL, Circuit Judges, and EAST, District Judge. PER CURIAM. 1 The United States seeks restitution for overpayment of freight charges. Suit was brought in the District Court under 28 U.S.C. 1345. Judgment was rendered by the District Court dismissing the action for lack of jurisdiction. 2 Between July 3, 1943, and October 10, 1947, appellees transported goods for the United States between points in California. Following deliveries, bills were submitted by appellees and were paid by the United States. As a common carrier, appellees' tariff rates, pursuant to California law, were on file with the California Public Utilities Commission. All of the shipments which concern…