only issue before that Court was whether or not the res was of a perishable nature and the respective claims of the defendants' creditors.
Section 1 of the Second Revised Supplementary Order 10 provides: 'Except as provided in Section 2 hereof, no provision of any price schedule, maximum price regulation or other pricing order issued by any office of the Office of Price Administration shall be deemed to apply to any sale, auction or otherwise, (a) held pursuant to the provisions of any order of sale made or entered by a State or Federal Court, (b) held by a sheriff, constable, bailiff, marshal or other judicial officer pursuant to applicable State or Federal Law, * * * '.
Section 9.5(a) of the Third Revised Ration Order 3 provides: 'Sugar may be delivered without the receipt of ration evidences to a person who gets it for liquidation only. Also no evidence need be given up for sugar delivered as part of a judicial proceeding or by operation of law, or for sugar delivered under the direction of or pursuant to an order of a court or by judicial process.'
From a mere reading of these sections it would seem to us that it was not necessary for that court to find that the defendants operation was a syrup-making and not a sugar-making operation and that the product or res was syrup and not sugar in order that it be sold at public auction without being subject to the Orders of OPA as to price and rationing currency. Even though we assume that the product was sugar, OPA orders and regulations would not apply to the judicial sale of the product. In addition, the issue of whether the buyers of the product at the judicial sale must subsequently comply with the regulations was also not before that court. However, this latter point seems to be conceded by that court. By an amended order, it warned that OPA was not relieving buyers of the res from compliance with (c) of Sec. 8.5(c); and the Department of Agriculture was not exempting them from War Food Order 51.
But even assuming that we are bound by the findings of the Louisiana District Court, we would not be compelled to dismiss Count Two of the amended complaint. For it should be noted that Count Two alleges that the defendants sold the product in great quantities to others in different states. The product delivered to others prior to the institution of this action was not in evidence or in issue before that court. Therefore its determination could not be binding on this court as to the nature of product which was not before it (unless perhaps it be shown that it was identical to the res which was before that court).
The third contention in support of the reason that its product is not sugar is, that the plaintiff is equitably estopped to allege in this suit that the product manufactured by defendants was sugar. This contention is predicated on the fact that the plaintiff (OPA Administrator), after it had been impleaded in the proceeding in the District Court of Louisiana, moved to be dismissed as a party to the proceeding. That court, after requesting OPA to consent to be made a party and thus give to the court the benefit of its knowledge of the OPA Orders and Regulations, reluctantly dismissed the Administrator as a party to the proceedings. The Administrator argues that the defendants sought to entice him to become a party under Section 205(d) of the Emergency Price Control Act, 50 U.S.C.A.Appendix, § 925(d), which provides: 'In any suit or action wherein a party relies for ground of relief or defense upon this Act or any regulation, order, price schedule, requirement, or agreement thereunder, the court having jurisdiction of such suit or action shall certify such fact to the Administrator. The Administrator may intervene in any such * * * action'.
Thus it can be seen the Administrator is given his choice of intervening and further the issue here presented does not involve any provision of the Emergency Price Control Act but is brought under the Second War Powers Act for rationing violations, and since both of these factors obtain it is difficult to understand any basis for the doctrine of equitable estoppel.
The third reason assigned by the defendants in support of their motion is that the question raised by the pleadings in this case is moot. Under the circumstances of this case, there appears to be no merit to this reason. The acts of the defendants which were alleged to be in violation of the ration orders and of the Second War Powers Act were not voluntarily relinquished by them prior to the institution of this action; they were halted only after an order to do so had been entered by this court. The defendants are vigorously contesting this action and they in no wise acquiesce in the right of the Administrator of OPA to bring this action in the first place. In addition there still remains the question- which the Administrator seeks to have resolved in this court so that he may be guided in his actions in future similar situations- whether the ration orders apply to the defendants' transactions. Nor is there the slightest indication, although they have been halted for the time being, assuming that the product manufactured by them is sugar, that the defendants may not in the future proceed on a similar venture. United States v. Trans-Missouri Freight Association, 166 U.S. 290, 17 S. Ct. 540, 41 L. Ed. 1007; Securities and Exchange Commission v. Okin, 2 Cir., 139 F.2d 87; Walling, Administrator v. Reid et al., 8 Cir., 139 F.2d 323; Walling, Administrator v. Mutual Wholesale Food and Supply Co., 8 Cir., 141 F.2d 331, 334; United States v. Aluminum Company of America, 2 Cir., 148 F.2d 416; Bowles, Administrator v. Adelson, D.C.N.Y., 61 F.Supp. 288; Bowles, Administrator v. Ward, D.C. Pa., 65 F.Supp. 880.
Defendants' motion for summary judgment is under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. The summary judgment procedure prescribed in this rule is a procedural device for promptly disposing of an action 'if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, (except as to the amount of damages) there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law'. (c) of Rule 56, supra. In this case it can not be said that there is no genuine issue as to any material fact. On the contrary, the gist of this case is whether or not the product manufactured by the defendants was sugar within the meaning of the ration order. This issue must be determined at a trial and cannot be resolved by this court on this motion. 'A motion for a summary judgment cannot be made a substitute for a trial either before the court or a jury'. United States ex. rel. Ryan v. Broderick, D.C. Kan., 59 F.Supp. 189, 192; Evans v. Stivers Lumber Co., D.C. Tenn., 2 F.R.D. 548; Moore; Federal Practice, Sec. 56.04.
Accordingly, since the allegations in Count Two of the amended complaint state a cause of action, and taking into consideration the averments contained in support of the motion to dismiss, a genuine issue of material fact is raised and the motion for summary judgment and to dismiss the complaint are denied.