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SCHADL v. BOYER

January 19, 1944

SCHADL
v.
BOYER, Major, et al.



The opinion of the court was delivered by: KIRKPATRICK

A reading of the complaint shows that the acts complained of as having been committed by the defendant, Major Arthur J. Boyer, are alleged to have been done under the orders of the other defendant, Major General Allen W. Gullion, Provost Marshal General. The case is one in which it is not averred that the superior officer, by reason of the unconstitutionality of the statute under which the orders were given or for some other reason, is without authority to act at all, but one in which it is averred that he has acted arbitrarily and in abuse of his discretion. In such cases the rule is well settled that the superior officer is an indispensable party to the action.

The plaintiff concedes that the purported service of process is not sufficient to bring Major General Gullion within the jurisdiction of this Court, he being an inhabitant of the District of Columbia.

 Orders may therefore be entered, quashing the purported service of process so far as it relates to Major General Gullion, and dismissing the action.

19440119

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