16385. Alleged Adulteration of potatoes.   U. S. v. 261 Bags, etc.   Tried to the
court.   Complaint dismissed.    (F. D. C. No. 24194.    Sample Nos. 504-K, 
642-K, 643-K.) 
'     •
LIBEL FILED :    On or about December 22, 1947, Northern District of Georgia.
ALLEGED SHIPMENT : On or about November 18, 19, and 25, 1947, by the Battle- 
ground Farms, from Freehold, N. J.
PRODUCT:    876   100-pound bags of potatoes at Atlanta, Ga.
LABEL, IN PART:    (Bag) "Victory [or "Goldfinch"] Brand."
NATURE OF CHARGE: Adulteration, Section 402 (a) (3), the product was unfit 
for food by reason of its musty odor and taste, which made it unpalatable.
DISPOSITION : Ernest F. Tark, trading as Battleground Farms, having appeared 
as claimant, the case was tried on February 7, 1950, before the court. On 
March 13,1950, the court dismissed the complaint, handing down the following 
opinion:
ANDREWS, District Judge:
ORDER DISMISSING COMPLAINT FILED AS A LIBEL IN KEM
"On February 7, 1950, the case came on for trial before the Court without a 
jury. Oral and documentary evidence was introduced, at the conclusion of 
which the Court inquired concerning the present location and condition of the 
res.
"It appeared that 872 of the 876 bags of potatoes originally seized were 
destroyed pursuant to a stipulation of the parties to avoid further expense of 
storage; and that the remaining four bags of the lot are no longer in existence. 
The material portion of the stipulations and orders follows:
That the cost of storage of the above-described product is considerable and increasing 
monthly, and that it does not appear practical because of the nature of the product and 
the long and unseasonable storage to longer keep the entire quantity of said potatoes 
upon cold storage.
It is stipulated and agreed that the issues in the case will be preserved and the inter- 
ests of the claimant and the Government better served by reduction at this time in the 
amount of the res.
That the bags of each brand of said potatoes be continued in cold storage as the 
res in the said case, and that the remainder of said potatoes be withdrawn from the 
storage by the United States Marshal and destroyed in accordance with proper order 
of this Court, without prejudice to either the Government or the claimant herein.
That the matter of cost will abide the determination of this case, and be taxed by the 
Court in accordance with law.
This the 30th day of September, 1948.
UNITED STATES  OF AMERICA
By:   J. Ellis Mundy
United States Attorney 
Hewlett & Dennis, T. F. Bowden 
By:   Charles S. Barton
Counsel for Ernest E. Park 
That the United States Marshal withdraw from storage all of said potatoes except 
two bags of each brand thereof, and destroy the same without prejudice to either party 
hereto by delivering the same to the United States Penitentiary, at Atlanta, Georgia, 
to be consumed by livestock, and that the two bags of each brand of said potatoes be 
continued in storage until the final determination of this cause, and shall constitute 
the entire res of said cause.
It is ordered further that the said destruction of said potatoes shall not affect the 
issues involved, which shall be preserved until the final determination of the cause, 
nor shall affect the taxing of the cost in the proceeding, but that this destruction is by 
consent of both parties and in order to minimize the incident cost of storage. 
BY THE COURT, this the 12th day of October, 1948.
Robert L. Russell
UNITED STATES DISTRICT JUDGE.
It is hereby stipulated and agreed by the parties hereto that the four bags of potatoes 
seized and stored in the Atlanta Company on or about January 7, 1948, in the above 
stated libel, and left in storage in accordance with the order of the Court dated October 
12, 1948, are not in existence or identifiable, either as potatoes or as edible food or 
otherwise and it is further stipulated and agreed that this stipulation be made a part 
of the record of the case.
This 8th day of March, 1950.
"W. G. McCullough 
Assistant United States District 
Attorney for the Government
Hewlett & Dennis, T. E. Bowden 
By :   Charles S. Barton
Attorneys for Claimant
Approved and ordered filed as a part of the record, March 8, 1950.
M. Neil Andrews 
u. s. JUDGE.
"In this state of the record I find it unnecessary to adjudicate the case in 
its entirety because I think it is moot.
"There is no res. A part of it was destroyed in accordance with the stipula- 
tion of September 30,1948; the remaining four bags which stood for the whole 
are no longer in existence. The cause should not proceed merely to fix liability 
for costs.
"See United States v. 3 Unlabeled 25-Pound Bags Dried Mushrooms, Seventh 
Circuit, 157 F. (2d) 722 and cases cited; Postal Telegraph-Cable Company v. 
City of Montgomery, 69 So. 428; Cullen v. Levee Improvement Dist. No. 3, 77 
S. W. (2d) 310.
"The complaint is hereby dismissed.
"This 13th day of March 1950."