Creasy v. United States

Citation20 F. Supp. 280
PartiesCREASY v. UNITED STATES.
Decision Date24 August 1937
CourtUnited States District Courts. 4th Circuit. United States District Court (Western District of Virginia)

Carleton Penn, of Roanoke, Va., for plaintiff.

F. S. Tavenner, Jr., Asst. U. S. Atty., of Woodstock, Va., for the defendant.

PAUL, District Judge.

This suit is an echo of the case of Creasy v. United States, an action on a war risk insurance policy, in which this court sustained a plea of the statute of limitations. The views of the court in the former case were embodied in an opinion filed with the record and which is reported in 4 F.Supp. 175.

The plaintiff has now filed a bill in equity reciting the former proceedings and praying that the judgment entered January 31, 1933, sustaining the plea of limitations be vacated and that the plaintiff be granted a trial upon the merits of his case. The bill recites that the former case was determined upon a stipulation of facts which was in one particular erroneous and that the error came to the knowledge of the plaintiff only after the former decision. The error alleged is this: That, whereas it was previously stipulated that the plaintiff's claim for insurance benefits had been received in the Veterans' Bureau on July 3, 1931, as shown by the stamp placed on it there, the plaintiff has since discovered the return registry receipt which shows that the claim was received at the Bureau on July 2, 1931, and signed for on that day. As a result of this, assuming it to be proven, the period during which the claim was pending in the Bureau was one day longer than heretofore supposed, with the result that the plaintiff had one day longer than heretofore assumed within which to bring suit after denial of his claim.

There is no need to recite all of the facts pertaining to this claim. They are set out in the former opinion. It there appears that the plaintiff received notice of denial of his claim on May 10, 1932, and this court held that he was under the necessity of bringing his suit on that same day in order to escape the bar of the statute. The only effect of this after-discovered evidence is to extend one day, until May 11, 1932, the time within which suit had to be brought. This, so plaintiff contends, saves him from the bar of the statute' inasmuch as he filed a copy of his petition in the clerk's office on May 11th. He relies upon the case of Willingham, Adm'r, v. United States, decided in the Western District of South Carolina on January 30, 1934,1 as holding that such filing constitutes an institution of the suit for the purpose of the statute of limitations. I do not find the opinion in this case reported, but I have been furnished a copy of it.

It seems needless to discuss the technical questions pertaining to the right of the plaintiff to maintain this suit, such as former adjudication, laches, etc., for conceding the facts now alleged as to the filing of the claim to be true, they cannot alter the conclusions set forth in the previous opinion.

It will be remembered, as recited in the previous opinion, that on May 11, 1932, the plaintiff filed a copy of his petition in the clerk's office and on the same day visited the office of the United States attorney with the intention of delivering to him a copy of the petition and having service accepted. Due to the absence of the United States attorney this was not done, and on May 13th, the plaintiff delivered to the United States marshal a copy of the petition for service on the district attorney. In my previous opinion, I was probably unfortunate in not stating with clarity and in detail my conclusions as to the time when an action of this nature is deemed to be begun or the act which constitutes the institution of the suit for the purpose of limitation. Those views may, therefore, be stated in more detail here.

It is obvious that when a complaint is filed in court the purpose of the issuance of process with its subsequent service upon the defendant is to inform the defendant that a complaint has been made against him in order that he may appear and defend. In every case brought in court notice to the defendant must be given by some method and at some stage. The mere filing of a complaint, declaration, petition, or whatever may be, in a clerk's office with no issuance of process thereon and no steps taken, or provided for to apprise the defendant that he has been sued, is not sufficient to bring a defendant into court.

Under the common-law procedure, suits are begun by the issuance by the clerk, at the direction of the plaintiff, of a writ, customarily termed a "summons," addressed to the defendant and directing him to appear. This writ is delivered to the sheriff or other officer to be by him served upon the defendant, and the officer makes a return thereon showing such service. The question of when a suit is deemed to be commenced for the purpose of stopping the running of the statute of limitations has frequently arisen in the courts, and undoubtedly the weight of authority is that, unless otherwise provided by statute, the suit is deemed to be commenced, so far as the parties to it are concerned, from the time that the summons, or other process, is issued and delivered to the officer, with a bona fide intent that it shall be served. Ross v. Luther, 4 Cow. (N.Y.) 158, 15 Am.Dec. 341; Johnson v. Farwell, 7 Greenl. (Me.) 370, 22 Am.Dec. 203. Anderson v. Aetna Life Ins. Co., 75 N.H. 375, 74 A. 1051, 28 L.R.A.(N.S.) 730; and see 37 Corpus Juris, 1055. In some states this general rule has been embodied in a statutory provision. This is the case in Virginia. Va.Code, § 6061. See Burks Pleading & Practice (2d Ed.) p. 391.

Under the general rule, the mere filing of the declaration in the clerk's office is not a commencement of the suit for the purpose of the statute of limitations. Nor is the mere filling out of the process by the clerk sufficient. It must be delivered, or put on the way of delivery, to the officer for the purpose of service. Ross v. Luther, supra; Webster v. Sharpe, 116 N.C. 466, 21 S.E. 912; International Paper Co. v. Com., 232 Mass. 7, 121 N.E. 510; U. S. v. American Lumber Co. (C.C.A.) 85 F. 827.

The procedure in war risk insurance cases is a special one prescribed by statute (U.S.C., title 28, §§ 762, 763 28 U.S.C. A...

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