313 F2d 639 United States v. Fairbairn

313 F.2d 639

UNITED STATES of America, Appellant,
v.
Nathan FAIRBAIRN and Ruth Fairbairn, Appellees.

No. 17397.

United States Court of Appeals Ninth Circuit.

February 27, 1963.

Appeal from the United States District Court for the Northern District of California, Southern Division, Lloyd H. Burke, District Judge.

John B. Jones, Jr., Acting Asst. Atty. Gen., Meyer Rothwacks, Harold C. Wilkenfeld, Daniel K. Mayers, and Douglas Kahn, Attys., Dept. of Justice, Washington, D. C., Cecil F. Poole, U. S. Atty., and Richard L. Carico, Asst. U. S. Atty., San Francisco, Cal., for appellant.

Bronson, Bronson & McKinnon, and Max Weingarten, San Francisco, Cal., for appellee.

Before ORR, HAMLEY and DUNIWAY, Circuit Judges.

PER CURIAM.

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1

At the time of oral argument in this matter, we deferred decision until action by the Supreme Court in the cases of United States v. Gilmore and United States v. Patrick, which were then pending before that court upon grants of certiorari. (United States v. Gilmore, 368 U.S. 816, 82 S.Ct. 57, 7 L.Ed.2d 22; United States v. Patrick, 368 U.S. 817, 82 S.Ct. 57, 7 L.Ed.2d 22) Decisions in both cases were handed down on February 18, 1963. (United States v. Gilmore, 83 S.Ct. 623; United States v. Patrick, 83 S.Ct. 618) We are unable to distinguish the facts in the case now before us from the facts in the Gilmore and Patrick cases. We are of the view that in this case, as in those cases, "the claims asserted by the wife in the divorce action arose from respondent's [appellee's] marital relationship with her and were thus the products of respondent's [appellee's] personal or family life, not profit-seeking activity." (Patrick, supra, 83 S.Ct. p. 621)

2

It follows that the judgment appealed from must be and it is hereby reversed, with directions to enter a judgment in favor of the United States.