UNITED STATES v. FIFTEEN CASES OF BRED SPRED, RASPBERRY FLAVOR, et al., 35 F.2d 183

PAGE, Circuit Judge. The government (appellant) libeled, in the United States District Court for the Southern District of Indiana, under the Food and Drugs Aet (21 USCA § 1 et seq.), a food product called “Bred Spred,” manufactured by claimant (appellee) at Chicago, and shipped into Indiana. Appellant abided by its overruled demurrer to each of the two paragraphs of appellee’s answer, and the libel was dismissed.

The first paragraph of the answer sets out, as an estoppel by judgment, the complete record, other than the evidence, of a case in a Federal District Court of Michigan, wherein a judgment, unappealed from, was adverse to the government.

Concerning the second paragraph of the answer, appellant, in its brief, makes the admission that it “consists of specific denials of the various averments of the libel and explanations, constituting together a plea of confession and avoidance.” It is not a plea of confession and avoidance, but we find that it is a good and sufficient answer to the libel, and that as to that paragraph the court properly overruled the demurrer and dismissed the libel. The propriety of the court’s action in that regard is not discussed or questioned by appellant.

On the contrary, after the above admission, appellant abandoned the issue on the second paragraph and said: “The contested issues here, then, arise upon the views held and ruling made by the Judge of the District Court upon the questions of former adjudication and estoppel raised by the first paragraph of amended answer.” That must end the case. With a good defense upon the merits admitted, it cannot matter how many errors may be committed by a trial court on any issue upon which a case cannot be reversed.

If we should hold with the contention of the government on the first paragraph, we could not, for that reason, reverse the judgment. The judgment is affirmed.