only by service within the district. Toland v. Sprague, 12 Pet. 300, 330, 9 L. Ed. 1093. Such was the general rule established by Judiciary Act Sept. 24, 1789, c 20, Sec. 11, 1 Stat. 73, 79, in accordance with the practice at the common law. Piquet (Picquet) v. Swan, Fed. Cas. No. 11,134, 5 Mason 35, 39 et seq. And such has been the general rule ever since.'
Another factor which is indicative of the lack of intent of Congress that private quarrels should be litigated in an anti-trust suit by the United States is the Expediting Act of 1903, 15 U.S.C. §§ 28 and 29. Section 28 empowers the Attorney General of the United States to certify to the Clerk of a District Court in which an anti-trust suit is pending that the case is of general public importance. This requires the presiding Circuit Judge to immediately designate a three-judge court to promptly hear and determine the cause. Section 29 provides that an appeal in an anti-trust action wherein the United States is complainant lies only to the Supreme Court of the United States. Certainly, it would be extending the intent of Congress to permit this extraordinary privilege to be used at will by private litigants. The effect of permitting cross-claims between groups of defendants in anti-trust actions would of necessity protract and delay litigation in violation of the express intent of Congress to expedite matters of this sort, particularly where an appeal to the Supreme Court of the United States is a matter of right and not of grace. I hold therefore, that this Court did not acquire in personam jurisdiction over these defendants by their appearance to answer an anti-trust action and further that cross-claims between groups of defendants are not permitted in an anti-trust action instituted by the United States involving conspiracy in restraint of trade.
I have heretofore carefully refrained from discussing the question as to whether or not defendants Krasnov have brought themselves within Rule 13(g) of the Federal Rules of Civil Procedure. In my view of the case, they have not. Rule 13(g) reads as follows:
'A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to toe cross-claimant for all or part of a claim asserted in the action against the cross-claimant.' As amended Dec. 27, 1946, effective March 19, 1948.
Analyzing the pleadings to date, we have here a case wherein the Government has charged criminal acts on the part of all six of these defendants. Whether they have or have not committed these criminal acts in violation of Section 1 and 2 of the Sherman Anti-Trust Act will of necessity have to be determined at the hearing of the case. Defendants Krasnov vigorously contend that the basis of the Government's charges is the above referred to 1938 agreement and that therefore their claim against Comfy, Katzner and Opperheimer arises out of the transaction or occurrence that is the subject matter of the original action. The Rule provides that the cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant. If Krasnovs were guilty of law violation, the other defendants cannot possibly be liable to them for any part of the relief granted the Government. It is not the agreement itself, which is only an incident in the Government's case, but actions pursuant to the agreement, as well as many other factors which the Government may develop that will establish liability of these defendants for their illegal transactions. I fail to see, therefore, where the claim made by the Krasnovs arises out of the transaction or occurrence that is the subject matter of the complaint, to wit: criminal acts. Consequently, I hold that the cross-claim is not within the provision of Rule 13(g) of the Federal Rules of Civil Procedure and for that reason as well should be stricken. In so deciding I am not in any way judging the merits of whatever dispute may exist between the parties defendant. If the Krasnovs have any complaints or claims for damage against Comfy, Katzner and Oppenheimer, these causes of action can be redressed in a proper suit and in a proper forum. In granting the motion to strike, the order will be without prejudice to the right of defendants Krasnov to assert their claims in a proper forum.
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