Legal Opinion
Monge v. Smyth
District Court, N.D. California
Decided October 15, 1951No. 30684PublishedCited by 1 opinion
1Opinion of the Court
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 motion to dismiss raises the question of this court’s jurisdiction. 26 U.S.C.A. § 3653(a) provides, “Except as provided in sections 272(a), 871(a)…
2Cases cited5 opinions
- Miller v. Standard Nut Margarine Co. of Fla.Supreme Court of the United States · 1932
- Hill v. WallaceSupreme Court of the United States · 1922
- Allen v. Regents of the University SystemSupreme Court of the United States · 1938
- Mitsukiyo Yoshimura v. AlsupCourt of Appeals for the Ninth Circuit · 1948
- Dwyer v. TraceyDistrict Court, N.D. Illinois · 1950
3Cited by1 opinion
- Monge v. SmythCourt of Appeals for the Ninth Circuit · 1952