that federal acts are a proper subject for judicial notice.
There is a further principle of pleading which has been recognized in federal procedure since United States v. Morris, 23 U.S. (10 Wheat.) 246, 6 L. Ed. 314 (1825), that a subsequent pleading of an adversary, if not thereafter denied, may cure a defect in a prior pleading. Cole v. Ralph, 252 U.S. 286, 40 S. Ct. 321, 64 L. Ed. 567 (1920); Albertson v. Federal Communications System, 87 U.S.App.D.C. 39, 182 F.2d 397 (1950); Bullen v. DeBretteville,, 9th Cir., 239 F.2d 824 (1956). This principle applies to substantive as well as procedural omissions.
In the first defense of their answer, defendants claim that any action lies only under BMA-66. In their second defense, the defendant Banks put into controversy the question as to whether all right of Justice to enjoin the merger is vested in BMA-66. The answer of the Comptroller likewise puts into controversy the Bank Merger Act of 1966 by its prayer for relief.
We have long passed the stage peculiar to common law pleading that a failure in form of pleading vitiates the entire proceeding. This is an important case to all and is not a private quarrel between two branches of the Executive Department. The Congress of the United States has, for the first time, permitted two co-ordinate branches of the same department of Government to litigate opposite views in a judicial proceeding, thus affording one department of the Executive Branch, aggrieved by an alleged arbitrary position of the Department of Justice, to properly present for the first time before the judicial side of the Government its contention when it is in violent disagreement with the Department of Justice. While quite novel, in view of increasing differences between departments of Government, the provision is undoubtedly necessary.
In denying the motions to dismiss at this time, the Court does not sustain the position of Justice that it is entitled to sue under Section 7 of the Clayton Act. The only suit open to Justice to enjoin a bank merger lies solely within the ambit of BMA-66. It is not necessary at this time to decide the question of burden of proof, whether on Justice or on the Comptroller and Banks. That will be ruled upon in later pre-trial procedures.
AND NOW, to wit, this 13th day of October, 1966, for the reasons set forth in the foregoing Opinion, it is Ordered, Adjudged and Decreed that defendants' Motion to Dismiss and intervenor's Motion to Dismiss be and they are hereby Denied.
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