Motion of Reconstruction Finance Corporation.

The Reconstruction Finance Corporation, purportedly joined by the Defense Supplies Corporation, moves to amend the complaint and judgment herein by substituting the Reconstruction Finance Corporation as plaintiff and judgment creditor and to substitute it as appellee in this Court.

The admitted facts are that Defense Supplies Corporation ceased to exist on July 1, 1945, by virtue of the Act of Congress of Ju'ne 30, 1945, dissolving that corporation; that after it ceased to exist, the trial of the case in the District Court on which the subsequent judgment rests was continued by the filing on July 2, 1945, of a closing brief in the name of the defunct corporation; followed by the Court’s order of submission of the trial on July 16, 1945; thereafter, on April 15, 1946, the judgment was entered for the non-existent corporation against certain defendants and against it as to one defendant; that thereafter the defunct corporation purported to appeal, and the judgment debtors appealed to this Court; thereafter, on September 16, 1946, over a year after its dissolution, the defu'nct corporation filed here its points and authorities on its purported appeal and briefed and argued it, and’ the judgment debtors did likewise; that thereafter, this Court affirmed the judgment in favor of the defunct corporation in its entirety and denied petitions for rehearing thereon.

It also is apparent that all of the judges participating in the adjudications and all the parties (except the attorneys for the defunct corporation) were ignorant of the fact that they were charged with notice of the Congressional enactment of its dissolution. As for the attorneys for the defunct corporation, they frankly admit they were aware that they purported to act for the defunct corporation.

The act dissolving the Defense Supplies Corporation, June 30, 1945, Chap. 215 Public Law 109, 59 Stat. 310 , 15 U.S.C.A. § 601 note, provides that, “notwithstanding any other provision of law, all functions [of the dissolved corporation] * * * are hereby transferred * * * to Reconstruction Finance Corporation and shall he performed, exercised and administered by that Corporation * *

That is to say that after July 1, 1945, the Reconstruction Finance Corporation "shall” file the final brief in the existing trial due after July 1, 1945, “shall” take the appeal from any adverse decision and “shall” defend in this Court any judgment favorable to it. The word “shall” is “the language of command” used in the statute in contrast to the “may” of the judges’ power to allow intervention. Anderson v. Yungkau, 329 U.S. 482, 485 , 67 S.Ct. 428, 430 .

The construction of the Reconstruction Finance Corporation is, in effect, that this “shall” is not mandatory and that it need not do these things; that it may choose an alternative, namely, that lawyers formerly representing the defunct corporation may pretend it is still existing and in its name continue the trial by filing a brief and procure a judgment in favor of a non-existent party.

The dissolving act further provides that: “No suit, action, or other proceeding lawfully commenced by or against any of such corporations shall abate by reason of the enactment of this joint resolution, but the court, on motion or supplemental petition filed any time within twelve months after the date of such enactment, showing a necessity for the survival of such suit, action, or other proceeding to obtain a determination of the questions involved, may allow the same to be maintained by or against the Reconstruction Finance Corporation.”

The Reconstruction Finance Corporation contends that it is not bound by this provision for maintaining the action and presents no petition to the Court with the required showing. Rather, they contend they are entitled to treat the recent specific Congressional act as subordinate to 28 U.S. C. 777, 28 U.S.C.A. § 777 , providing that any court, including the Appellate Court, shall not abate any proceeding or reverse any judgment for a “defect * * * of form.” The statute concludes the Court “may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as it shall, in its discretion and by its rules, prescribe.”

*202 This the Reconstruction Finance Corporation’s brief would interpret as permitting us to disregard “defects of form' and procedure.” So interpreted, we could disregard a “defect of procedure” on appeal consisting of filing a notice of appeal four months after the judgment was entered in the District Court.

The Reconstruction Finance Corporation also contends that its failure to follow the mandate of the statute that it “shall” exercise the functions of the non-existent dissolved corporation is a mere “defect * * * of form.” That is to say, the failure to supply any litigant at all over which the Court has jurisdiction to render a judgment is not a jurisdictional defect, but a mere defect of form. As seen infra, the Supreme Court in Payne v. Industrial Board, 258 U.S. 613 , 42 S.Ct. 462 , 66 L.Ed. 790 , holds the defect to be a “want of jurisdiction.”

The Reconstruction Finance Corporation • cites our decision in Reardon v. Balaklala Consol. Copper Co., C. C., 193 F. 189 , a case brought in the California District Court on diversity of citizenship. There the Court held valid a suit commenced by the father of the deceased, under a California statute allowing a suit by the personal representative of a deceased employee. No question of substitution of the personal representative was discussed and it was assumed that the father under the California law had the right to bring the action.

We do not agree that the failure of Reconstruction Finance Corporation to appear and give a jurisdiction in personam for a judgment and thereafter perform the functions of its statutory mandate is a mere “defect * * * of form” within Sec. 777 and deny the motion to substitute the Reconstruction Finance Corporation as judgment creditor, or as a party to the appeal.

The Motion of the Lawrence Warehouse Company et al.

The appellants from the judgment, Lawrence Warehouse Company et al. contend that the Reconstruction Finance Corporation cannot now be substituted as a party to the action as at any period of its pendency and move the court to set aside its affirmation of the judgment and remand the case to the District Court with instructions to dismiss.

Appellants’ contention is not only that the judgment and its affirmance are acts in vacuo because in favor of a non-existent party but also the functions which the Reconstruction Finance Corporation shall perform are limited in time to the twelve months’ period within which it must file a motion, “showing a necessity for the survival of such suit, action or other proceeding to obtain a determination of the questions involved,” in which event the court “may allow the same to be maintained by or against the Reconstruction Finance Corporation.”

It is apparent that if now, two years and seven months after the dissolution of the Defense Supplies Corporation, the Reconstruction Finance Corporation shall perform the former’s function, the twelve month period of the statute is made meaningless, in violation of the cardinal rule of a construction of a statute that its words shall be given effect and not made nugatory. It seems impossible that Congress meant to say, “You can intervene and make the showing we require any time you' please, but it would be nicer if you would do it within twelve months.”

Emphasis is placed on the fact that a government agency may lose its valuable right of action if the dissolving act is construed adversely to it. As shown, infra, it is not true that by dismissal of the action here the right of action is lost to the government. The right of action here survives, though, as shown, the Supreme Court holds that the action against the dissolved corporation is “abated.” Fix v. Philadelphia Barge Co., infra.

The act is not a one-way street. If the suit were against the governmental agency by a private litigant who had obtained judgment, we well could expect the argument that the statute was one for the protection of that agency and that Congress intended so to protect it, as shown, infra, by the Supreme Court decision holding non-compliance by the private suitor abated the action and caused the court to lose its jurisdiction over it.

*203 Stress is laid on the statute’s provision that no “action * * * by or against [the dissolved corporation] shall abate by reason of” its enactment. However, the Supreme Court has held of a statute, 28 U.S.C.A. § 780 , identical in its provisions concerning abatement and substitution and providing that no action against a federal officer “shall abate by reason of his death, or expiration of his term of office,” etc., that it is abated if his successor does not seek substitution within the twelve months’ limitation provided for such procedure. The identity of the provisions of the Act of Congress of February 8, 1899, 28 U.S.C.A. § 780 , with the instant dissolving act appears in the words of the two statutes. The 1945 act provides first that “Notwithstanding any other provision of law, all functions, powers, duties, and authority of the corporations hereinafter designated, are hereby transferred, * * * to Reconstruction Finance Corporation and shall be performed, * * * by that Corporation in the same manner and to the same extent and effect as if originally vested in Reconstruction Finance Corporation, and the designated corporations are hereby dissolved : * * * Sec. 2. The Reconstruction Finance Corporation shall assume and be subject to all liabilities, whether arising out of contract or otherwise, of the corporations dissolved by this joint resolution.” (Emphasis supplied.)

Then follow the parallel provisions, the italicized portions showing the identity:

In the instant act, the words “Reconstruction Finance Corporation” are substituted for the words “his successor in office.” It is thus seen that Congress copied the words' of its prior statute. The specific provisions of the 1945 act control those of the prior Federal Rules Civil Procedure, rule 25(c), 28 U.S.C.A. following section 723c.

The questions whether an application for substitution to maintain the action could be made after the twelve months’ period came before the Supreme Court on this identical statute in the case of LeCrone v. McAdoo, 253 U.S. 217 , 40 S.Ct. 510 , 64 L.Ed. 869 . There, as here, the action seeking a mandamus against the Secretary of the Treasury had been decided by the District Court, its decision affirmed by the Court of Appeals, and was before the Supreme Court on a writ of error. That court dismissed the writ of error, holding at page 219 of 253 U.S., at page 511 of 40 S.Ct., “But we cannot consider that question or the other arguments upon the merits of the case, because Mr. McAdoo having resigned the office of Secretary of the Treasury, his successor was not substituted within twelve months; which is the limit for such substitution fixed by the Act of February 8, 1899, c. 121, 30 Stat. 822 .”

While holding, though not expressly, that the failure of the successor litigant to appear created an absence" of jurisdiction to proceed with the action, the court, relying on LeCrone v. McAdoo, expressly so held in the succeeding decision on the same statute of 1899, John Barton Payne v. Industrial Board of Illinois, 258 U.S. 613 , 42 S.Ct. 462 , 66 L.Ed. 790 . There Payne was litigating in performance of his federal func *204 tion as a United States officer, director of railways. He had resigned more than twelve months before the dismissal was sought. The cou'rt in its Per Curiam stated that the writ of error is “dismissed for want of jurisdiction. Act of February 8, 1899, c. 121, 30 Stat. 822 * * *; Le Crone v. McAdoo, 253 U.S. 217, 219 , 40 S.Ct. 510 , 64 L.Ed. 869 .” (Emphasis supplied.)

It is thus apparent that the provision that the cause of action shall not abate means that the action is still pending but that the court lacks “jurisdiction” to consider it in the absence of a substitution in the period of twelve months.

Here is not a mere statute of limitation. Here is a statute which provides that after the twelve months’ period the court loses jurisdiction to consider it. It is elementary that absence of such jurisdiction cannot be waived or jurisdiction conferred by consent. Mitchell v. Maurer, 293 U.S. 237, 244 , 55 S.Ct. 162 , 79 L.Ed. 338 ; City of Gainesville v. Brown-Crummer Inv. Co., 277 U.S. 54, 59 , 48 S.Ct. 454 , 72 L.Ed. 781 ; Ross v. White, 6 Cir., 32 F.2d 750 , (filing briefs does not create jurisdiction).

In 1925, Congress amended the Act of 1899 reducing the period of substitution to six months, 28 U.S.G 780, 28 U.S.C.A. § 780 . It provided that, “where, during the pendency of an action * * * [against an officer] relating to the present or future discharge of his official duties, such officer dies, resigns, or otherwise ceases to hold such office, it shall be competent for the court wherein the action, suit, or proceeding is pending, whether the court be one of first instance or an appellate tribunal, to permit the cause to be continued and maintained by or against the successor in office of such officer, if within six months after his death or separation from the office it be satisfactorily shown to the court that there is a substantial need for so continuing and maintaining the cause and obtaining an adjudication of the questions involved.” (Emphasis supplied.)

The words that “it shall be competent for the court * * * to permit the cause to be continued and maintained” obviously are the equivalent of the words of the statute of 1899 that the action shall not “abate”. In the following cases the Supreme Court and Courts of Appeal have dismissed where the substitution of the official litigant is not made in the six months.

In the United States ex rel. Claussen v. Curran, Commissioner, 276 U.S. 590 , 48 S.Ct. 206 , 72 L.Ed. 720 , the Supreme Court stated:

It is thus seen that under Sec. 780, as under the Act of 1899, the action is not abated by the absence of the federal litigant, but that it does aliate at the end of the limitation period because of the failure of the successor federal litigant to be substituted in the action. That is to say, while the mere dissolution does not abate the action, it is abated after the period fixed for the appearance of the successor litigant.

It is pertinent here that in United States v. Curran, where both litigants were federal, the resignation took place after judgment in the trial court and during the course of appeal; that the six months’ time for substitution expired on September 30, *205 1926, before the Court of Appeals on December 24, 1926, affirmed; and that the question of the failure to substitute was first suggested to the Supreme Court after the Writ of Certiorari was granted.

Here is answered the contention of Reconstruction Finance Corporation that the delay of the appellants to move to raise the jurisdictional question has created jurisdiction by waiver. There the successor in office moving for dismissal was charged with knowledge of the resignation of his predecessor, just as here the moving parties had knowledge of the statute of June 30, 1945. There, just as it is claimed under our present rules of civil procedure, either party could have moved in the Circuit Court of Appeals for a substitution of the officer litigant, so here either could have moved for such a substitution in the District Court or in this Court.

There, as here, the opposing party could not move for a dismissal till the case reached the court of appeal, because the period of limitation expired after the appeal was taken. There, as here, the motion to dismiss could have been made before the decision of the court of appeal or after, but was delayed till in the Supreme Court. *

The Court of Appeals of the District of Columbia, in dismissing under § 780, relies on the decisions in the LeCrone and Curran cases decided under the Act of 1899. Black Clawson Co. v. Robertson et al., 63 App.D.C. 236 , 71 F.2d 536 . Likewise, following these earlier Supreme Court decisions are the district court decisions in Martin v. Coe, 65 App.D.C. 349 , 83 F.2d 606 ; Kuttroff v. Sutherland, D.C., 49 F2d 944; Bowles v. Ohlhausen, D.C., 71 F.Supp. 199 .

In Fix, Collector of Internal Revenue, v. Philadelphia Barge Co., 290 U.S. 530 , 54 S.Ct. 270, 271 , 78 L.Ed. 481 , there had been a suit in assumpsit for federal taxes brought by collector McCaughn, Fix’s predecessor in office. It was dismissed on a showing that McCaughn had ceased to be collector and no substitution made in the six months’ period provided in 28 U.S.C. 780, 28 U.S. C.A. § 780. It was contended that Fix’s later suit for the same tax liability was barred by the dismissal of McCaughn’s suit. The Supreme Court held to the contrary, stating of the act of 1899 as amended in 1925:

That is to say of the Act of 1925, using the exact words of the instant statute, the appearance within the limited period of the substitute officer, as here the Defense Supplies Corporation, creates a “revival of the action.” If the “action” is not so revived, the court loses jurisdiction to consider it but the “cause of action” nevertheless remains to be litigated by the successor in a new action.

Here is answered the contention that the Defense Supplies Corporation will have lost its right of action against the appellants by its failure to appear in the limited period. On the contrary, after the twelve months it could have begun a new suit against appellants. That it now may have lost that right to sue by some statute of limitation is no more relevant here than it would have been to the holding in the Fix case.

So, also, the Fix case answers the contention, much urged, that the United States, owning the stock of the Defense Supplies Corporation, is the real party in interest in a recovery of damages against appellants. In that sense so was the United States-, with its Collector Fix suing for taxes for the federal treasury in his “official capacity” as tax collector.

However, we do not agree that the United States is the real party litigant where the Reconstruction Finance Corporation is sued *206 or being sued. That is to say, that in all the scores of suits against that corporation, the complaint need not make it the defendant but may be brought against the United States alone, with a mere allegation that the corporation is its agent.

The case of Fleming v. Goodwin, 8 Cir., 165 F.2d 334, 338 , cited by the Finance Corporation, expressly distinguished Rule 25(d), the successor to the Act of 1899, on the ground that the Price Control Administrator was authorized “by § 205(e) of the-Emergency Price Control Act [50 U.S.C.A. Appendix, § 925(e)] to bring the action ‘on behalf of the United States.’ He was not authorized to bring it on his own behalf. * * * ” So also, United States v. Koike, 9 Cir., 164 F.2d 155, 157 . The Administrator there is a mere use plaintiff for the United States. Here the Reconstruction Finance Corporation sues on its own corporate behalf and not as use plaintiff for the United States.

We are not in accord with the decision of the Eighth Circuit of March 25, 1948, in Gaynor v. Metals Reserve Company, 166 F.2d 1011 . The opinion there does not mention the McAdoo, Payne, Clau'ssen or Fix cases. Passing on the statutory provisions identical with the Acts of 1899 and 1925, it treats the granting of the motion to dismiss as “the repudiation of a just debt” and that thereby the liability would be “extinguished twelve months after the enactment of Public Law No. 109,” though the Fix case shows the contrary. It relies on the dictum of th,e Oklahoma Natural Gas Co., considered infra, construing a different state statute, a decision before both the Claussen and Fix cases. It nowhere considers the Supreme Court’s holdings that the court loses jurisdiction of the action commenced by the later defunct corporation and the action abates by non-appearance of the successor litigant, though the came of action survives. It does not consider the statute’s mandatory “shall” for the performance of the “function” of the successor litigant.

It is contended that the case of Anderson v. Yungkau, 329 U.S. 482 , 67 S.Ct. 428, 429 , overrules, sub silentio, the holdings in the LeCrone, Payne and Curran cases followed by the Court of Appeals and the District Courts, that the language used in the statutes there, identical with the Act of June 30, 1945, created a statute of limitation. In that case, the court was considering Rule 25(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, providing:

This rule is confined to successor human litigants not to corporations. The court held that 25(a) creates a statute of limitation and that one could not extend the limited period by a showing of excusable neglect under Rule 6(b). In the course of the discussion, the court states:

While we do not know what the court would have decided if the mandatory words “shall be dismissed” were not used, the statute of June 30, 1945, contains the mandate that whatever may be done after the dissolution of the Defense Supplies Corporation “shall” be done by the successor corporation, which we interpret to mean shall be done in the time limited. As stated of the Act of 1899, which is the predecessor of Rule 25(a), the time limit of the rule is meaningless if the substitution may be made after the limitation period has expired. The Statute of 1899 is without the words “the action shall be dismissed” nevertheless, the LeCrone, Payne and Curran cases hold that the action must, that is “shall,” be dismissed after the period of limitation, and this al *207 though that act also states that no such action “shall abate,” as Rule 25(a) provides that such action “shall continue.” The phrase “shall be dismissed” of the rule is but the embodying of the Supreme Court’s construction of its predecessor’s statute.

It is also contended that the preceding LeCrone and Payne cases are overruled, without mentioning them, by the Supreme Court’s opinion in Oklahoma Natural Gas Co. v. Oklahoma, 273 U.S. 257 , 47 S.Ct. 391 , 71 L.Ed. 634 , on writ of error from the Supreme Court of Oklahoma. The contention ignores the fact that Claussen v. Curran was decided in 276 U.S., 590 , 48 S.Ct. 206 , 72 L.Ed. 720 , a year later, and Fix v. Philadelphia Barge Co., in 290 U.S. 530 , 54 S.Ct. 270 , 78 L.Ed. 481 , seven years later. The gas company had been dissolved and the district judge had the option to choose a representative to settle its affairs or to appoint its director or managers who “may” perform the function “to maintain or defend actions” for the dissolved corporation. The statute concluded with the words “and no action whereto any such corporation is a party shall abate by reason of such dissolution.” 18 O.S. 1941 § 163. A successor corporation formed under the laws of Delaware moved to be substituted. The motion was denied, but in the discussion concerning “such” a corporation, the Court stated [ 273 U.S. 257 , 47 S.Ct. 392 ]:

The Defense Supplies Corporation was not “such” a corporation. It was a corporation dissolved, of which the Court in the Oklahoma gas company case states:

The Defense Supplies Corporation created by Congress differed from Oklahoma corporation in that, instead of having several successors to be chosen by the court, there is but one which “shall” perform the function “to maintain or defend” suits against the dissolved corporation. The Oklahoma statute has no time limitation within which to be substituted, while the Congressional act has such a limitation after which time the Supreme Court has held of an identical provision that “the action shall not abate,” that it does “abate” after the time period and that the court loses “jurisdiction” to consider it.

We do not think that the court’s remarks concerning the Oklahoma statute overrule the LeCrone and Payne decisions. This is clear from the later decision of Claussen v. Curran. We hold that these cases determine the interpretations of the Act of June 30, 1945. The motion of the Reconstruction Finance Corporation for substitution is denied. The motion of Lawrence Warehouse Company et al. is granted and we order set aside our judg *208 ment of affirmance of December 5, 1947, and the judgment of the District CoUrt and remand the case to the District Court with instruction to enter an order dismissing the action.

Action ordered dismissed.

It is not necessary to distinguish the cited New Jersey case of Matthison v. Payne, 98 N.J.L. 383 , 119 A. 771 , since if not distinguishable it cannot overrule the LeOrone and other cases.