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Moran v. Commanding General of United States Army Finance Center

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT


May 3, 1966

LUCILLE W. MORAN, PLAINTIFF-APPELLANT,
v.
COMMANDING GENERAL OF THE UNITED STATES ARMY FINANCE CENTER, DEFENDANT-APPELLEE

Knoch, Kiley and Swygert, Circuit Judges.

Author: Kiley

KILEY, Circuit Judge.

This is a civil rights action, filed November 30, 1964, under 28 U.S.C. § 1343, for violation of 42 U.S.C. §§ 1983 and 1985,*fn1 seeking $500,000.00 damages. The district court dismissed on the ground that the court had no jurisdiction over the nameless defendant, a nonentity in law. We affirm.

The complaint alleges, in substance, the following: In 1959 plaintiff, a retired Army officer, executed and delivered to the office of defendant a power of attorney authorizing a Massachusetts bank to collect and deposit to her account monthly checks due her from the Army. Subsequently the bank and her brothers, in conspiracy, obtained a state court appointment of the bank as conservator of her estate, on the ground that she was mentally ill.*fn2 And that thereafter, the defendant "or persons under his control and command, conspired" to carry into effect an assignment to the bank of the monthly checks, in violation of the provisions of the executed power of attorney and Army regulations; and that these actions of the defendant done in conspiracy set in motion a series of actions which deprived plaintiff of her rights, privileges, and immunities under the fourteenth amendment.

The dismissal by the district court on March 31, 1965, was conditional, i.e., plaintiff was allowed fifteen days in which to amend her complaint to name an "appropriate defendant." On April 12, 1965, plaintiff moved, pursuant to Rule 59(e), to alter the judgment, persisting in her theory that under Rule 25(d) of the Federal Rules of Civil Procedure*fn3 defendant, the "Commanding General, U.S. Army Finance Center," was a legal entity, and urging the court to enter summary judgment in her favor. The United States Attorney answered that since a money judgment was sought, which would have to be enforced against the personal assets of someone, Rule 25(d) was not applicable. On May 21, 1965, plaintiff moved the court to substitute the "names of persons" serving in specified time periods in the office named as defendant, and subordinate unnamed parties. The district court subsequently denied these motions.

Even assuming, but of course not deciding, that there was properly charged a deprivation of her civil rights,*fn4 plaintiff is claiming against the person who held the defendant-office as an individual when the alleged wrongful conduct took place, and the court had no jurisdiction of that person. The district court noted in its entry that, according to its information, that person, who still remains nameless, had retired in the summer of 1961 to Florida. Thus, in addition to naming no legal entity,*fn5 plaintiff could not name a person, responsible for the acts complained of, over whom the court had jurisdiction. She seeks money damages and has neither named nor served any person against whom a judgment can be entered for recovery of money, or against whom execution can issue to enforce a money judgment.

The condition in the judgment not having been met, the judgment became final and is hereby affirmed.


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