Anno v. United States, 607-52.
| Decision Date | 13 July 1953 |
| Docket Number | No. 607-52.,607-52. |
| Citation | 125 Ct. Cl. 535,113 F. Supp. 673 |
| Parties | ANNO v. UNITED STATES. |
| Court | U.S. Claims Court |
Prew Savoy, Washington, D. C. (H. H. Martin, Washington, D. C. of counsel), for plaintiff.
Thomas O. Fleming, Washington, D. C., Asst. Atty. Gen. Holmes Baldridge, for defendant.
Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN and HOWELL, Judges.
Plaintiff a citizen and resident of the Philippines, brings this suit to recover approximately $16,500 plus interest thereon, alleged to have been commandeered by officers of a recognized guerrilla unit during the period 1942 to 1944.
Plaintiff's petition was filed in this court on December 31, 1952. Defendant has filed a motion to dismiss the petition on the ground that the claim is barred by the statute of limitations applicable to claims coming within the general jurisdiction of the Court of Claims, 62 Stat. 976, 28 U.S.C. (Supp. V) § 2501, because it was not filed within six years after the claim first accrued. In Marcos v. United States, 102 F.Supp. 547, 106 F.Supp. 172, 122 Ct.Cl. 641, we held that the wartime suspension of the statute of limitations with respect to Philippine claims was lifted on September 2, 1945 because access to this court by Filipinos had once again become possible. Under the ruling in that case, plaintiff's claim was barred after September 2, 1951.
Plaintiff has filed a motion asking the court to issue a nunc pro tunc order that the petition filed December 18, 1952, be deemed and held to have been filed August 14, 1951, and that if such motion be denied, defendant's motion to dismiss be held in abeyance until the court disposes of defendant's motion to dismiss in Alfredo C. Sese v. United States, No. 634-52, which case will then involve the same questions as that involved in the instant case.
In support of its motion plaintiff states that a signed petition to this court designated "Petition for Review and Reconsideration" was duly transmitted to the Clerk of this court for filing. The petition was signed by plaintiff June 3, 1951, and was received by the court prior to September 2, 1951. On August 14, 1951, the Assistant Clerk of the Court returned the petition to plaintiff with a covering letter which stated as follows:
It is plaintiff's position that although its petition was not in the precise form required by our rules, it did set forth a cause of action within the meaning of the Marcos case, supra, and the case of Victorio v. United States, 106 F.Supp. 182, 122 Ct.Cl. 708, in that it was received by the court prior to September 2, 1951, and was for a requisition made by a recognized guerrilla unit. Plaintiff urges that through no fault of its own but rather due to an error of the office of the Clerk of this Court, the petition was not filed and that only the nunc pro tunc order requested will serve to prevent irreparable injury and injustice to this plaintiff.
In its memorandum of law in support of its motion, plaintiff contends that delivery of the petition to the Clerk (prior to September 2, 1951) constituted a "filing" under both the Rules of this court and numerous Federal and State court decisions. Plaintiff concedes that the filing fee of $10 required by our rules did not accompany the petition, but urges that in the absence of any request therefor by the Clerk and refusal by plaintiff, the document must be considered "filed," citing cases. Plaintiff relies principally on the case of American Exchange National Bank of Dallas v. Colonial Trust Co., Tex.Civ.App., 186 S.W. 361, 363, which held that the Clerk of that court was entitled to demand the filing fee when an instrument was offered for recording, but that if he failed to do so immediately and retained the instrument in his custody pending notification of payment of fees, the instrument was nevertheless filed for record. In that case the clerk did not refuse to hold the instrument for filing nor did he mail it back to the bank. The clerk indorsed on the instrument the date of its receipt by him in his office and held it in his official custody. Furthermore the statute providing for the payment of filing fees applicable to that court stated:
"No county clerk shall be compelled to file or record any instrument of writing permitted or required by law to be recorded, until after payment or tender of payment of all legal fees for such filing or recording has been made."
The court pointed out that under this statute the clerk was merely authorized to demand in advance all legal fees for the filing of the instrument; that the words "compelled to file or record" as used therein evidently had reference only to the doing of the services required by law in respect of making entry on the file register and of recording; that while the clerk might, under that article have had the personal privilege of requiring the payment of his fees, he was not forbidden to receive and retain in his office custody for record an authorized instrument until there was payment of the recording fee.
U.S.C. Title 28 § 2520 provides as follows:
"(a) the Court of Claims shall by rules impose a fee not exceeding $10, for the filing of any petition and the hearing of any case before the court, a judge, or a commissioner."
Rule 82, 28 U.S.C.A., promulgated pursuant to the above statute provides:
"Except for petitions filed under Rule 22(a), a fee of $10 shall be paid at the time of filing of any petition".
We have not had called to our attention any decisions passing on the question whether the payment of the above filing fee is a prerequisite of filing in the Court of Claims. However, certain decisions involving that problem in the District Courts are significant.
U.S.C. Title 28 § 1914 provides:
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