303 U.S. 36 (1938), 218, Munro v. United States

Docket Nº:No. 218
Citation:303 U.S. 36, 58 S.Ct. 421, 82 L.Ed. 633
Party Name:Munro v. United States
Case Date:January 31, 1938
Court:United States Supreme Court
 
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303 U.S. 36 (1938)

58 S.Ct. 421, 82 L.Ed. 633

Munro

v.

United States

No. 218

United States Supreme Court

Jan. 31, 1938

Argued January 6, 7, 1938

CERTIORARI TO THE CIRCUIT COURT OF APPEALS

FOR THE SECOND CIRCUIT

Syllabus

1. A suit in the District Court to recover on a War Risk insurance policy, the procedure in which is the same as that provided in §§ 5 and 6 of the Tucker Act, was not brought in time to toll the statute of limitations where the complaint was not filed with the clerk of the court before the period of limitations expired. P. 39.

To commence the suit in accordance with §§ 5 and 6 of the Tucker Act, it was not enough to serve a copy of the summons upon the District Attorney and mail another to the Attorney General.

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2. Suits against the United States can be maintained only by permission, in the manner prescribed and subject to the restrictions imposed. The Conformity Act cannot be relied upon to change any of these. P. 41.

3. A District Attorney has no power to waive conditions or limitations imposed by statute in respect of suits against the United States. Id.

89 F.2d 614 affirmed.

Certiorari, 302 U.S. 668, to review the reversal of a judgment against the United States in a suit on a War Risk Insurance claim.

MCREYNOLDS, J., lead opinion

MR. JUSTICE McREYNOLDS delivered the opinion of the Court.

Certiorari was granted because of conflicting views in the lower courts.

Claiming to be permanently and totally disabled, petitioner instituted an action in the United States District Court, Western District of New York, to recover under a War Risk Insurance Policy. 10 F.Supp. 412. He was honorably discharged in 1919.

Before the cause came on for trial, respondents moved for dismissal because the action was not brought within

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the time prescribed by §19, World War Veterans' Act 1924, as amended by Act July 3, 1930, 46 Stat. 992, copied in the margin. * This motion was overruled. Whether properly so is the matter for our consideration.

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By concession, it was necessary to bring suit not later than July 1, 1933.

[58 S.Ct. 423] March 16, 1933, a praecipe for issuance of summons was filed with the clerk of the District Court; on the same day, copy of the summons was served upon the United States attorney in Buffalo, and another mailed to the Attorney General at Washington; no copy of the complaint was served upon the United States attorney until July 26, 1933; the original complaint was not filed with the clerk until April 23, 1936.

February 15, 1934, the United States attorney filed an answer without questioning the timeliness of the suit; a year later, he moved to dismiss. The cause was heard in April, 1936; judgment went for the assured July 29, 1936.

In following the above-described procedure, petitioner's counsel acted upon information given by the assistant United States attorney, who declared that service of summons would suffice to give jurisdiction and toll the statute; that complaint might be served thereafter.

Two points are presented. Did procuring the summons, serving one copy on the United States attorney and sending another to the Attorney General, begin the

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suit within the requirement of the statute? If not, do the circumstances establish waiver of the defense that suit was out of time.

Section 19, Act of 1924, permits an action on a war risk policy to be brought in the United States District Court for the district in which the claimant resides. Also directs, "The procedure in such suits shall be the same as that provided in sections 5 and 6" (§§ 762 and 763, Title 28, U.S.C.) of the Tucker Act of March 3, 1887, "and Section 10 thereof (§ 765, Title 28, U.S.C.) insofar as applicable." Sec. 5 of the Tucker Act provides that the plaintiff "shall file a petition" with the clerk of the court...

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