Genesee Valley Trust Co. v. United States, 124.

• Citation: 116 F.2d 407
• Decision Date: 23 December 1940
• Docket Number: No. 124.,124.
• Parties: GENESEE VALLEY TRUST CO. OF ROCHESTER, N. Y., v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

116 F.2d 407 (1940)

GENESEE VALLEY TRUST CO. OF ROCHESTER, N. Y., v. UNITED STATES.

No. 124.

Circuit Court of Appeals, Second Circuit.

December 23, 1940.

Daniel J. O'Mara, of Rochester, N. Y. (Edmund Clynes, of Rochester, N. Y., of counsel), for appellant.

George L. Grobe, U. S. Atty., of Buffalo, N. Y. (Goodman A. Sarachan, of Rochester, N. Y., of counsel), for appellee.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

SWAN, Circuit Judge.

This action seeking recovery on a war risk insurance policy was dismissed on the ground that it had not been brought within the time prescribed by statute, 38 U.S. C.A. § 445. The correctness of this ruling is the question presented by this appeal. There is no dispute as to the facts, which are as follows:

The insured, Roy Miller, attempted to bring suit on June 18, 1935 by causing a summons to be issued by a deputy clerk of the district court and to be served on an assistant United States attorney at Rochester, N. Y. A motion to quash the service of summons was granted by Judge Knight. Miller v. United States, D.C., 11 F.Supp. 924. Thereafter on August 27, 1935 Miller served a copy of what purported to be the petition in his suit upon the United States attorney and sent another copy by registered mail to the Attorney General; but neither the original petition nor a copy thereof was filed with the clerk of the district court until January 18, 1936. The United States moved to dismiss the petition on the ground that it was filed too late. This motion was denied by Judge Rippey. Miller v. United States, D.C., 13 F.Supp. 684. In May 1938, the motion was renewed before Judge Burke and was granted on the authority of Munro v. United States, 303 U.S. 36, 58 S. Ct. 421, 82 L.Ed. 633. Thereafter, it became known that the Supreme Court of Monroe County, N. Y., had adjudged Miller incompetent and appointed Genesee Valley Trust Company of Rochester, N. Y., committee of his estate. Consequently the former order of dismissal was vacated, the Trust Company was substituted as plaintiff, and the petition was again dismissed. This is the order appealed from.

The appellant contends that by virtue of the statute, 38 U.S.C.A. § 445, Miller had a year after the failure of his first attempt to bring suit within which to institute a new action. This section prescribes a six year statute of limitations but provides: "* * * If suit is seasonably begun and fails for defect in process, or for other reasons not affecting the merits, a new action, if one lies, may be brought within a year though the period of limitations has elapsed." Under this provision if an action fails because of a jurisdictional defect, or some other ground not affecting the merits, an additional year's time is given for the filing of a new suit. Johnson v. United States, 9 Cir., 68 F.2d 588; Mack v. United States, D.C.E.D.S.C., 29 F.Supp. 65. A similar form of statutory extension has been granted in other jurisdictions. Smith v. McNeal, 109 U.S. 426, 3 S.Ct. 319, 27 L.Ed. 986; Gaines v. City of New York, 215 N.Y. 533, 109 N.E. 594, L.R.A. 1917C, 203, Ann.Cas.1916A, 259.

The year's extension granted by the quoted provision does not apply, however, to a case where the original suit failed because barred by the statute of limitations. The provision expressly requires that the suit which is dismissed for a reason not going to the merits be "seasonably begun." This can only mean begun within the period of limitations. This is the recognized interpretation of "seasonably begun." Harrop v. United States, D.C.L.D.Neb., 10 F.Supp. 753, 756; Parker v. United States, D.C.N.D.W.Va., 29 F. Supp. 741; Jewell v. United States, D.C. W.D.Ky., 27 F.Supp. 836, 838. Any other interpretation would nullify the six year period of limitations as it would give the litigant a limitless time in which to file his original suit, plus an additional year after the first suit was dismissed because filed too late.

The question, then, is whether the attempted service of summons in June 1935 constituted a suit "seasonably begun" which failed "for defect of process, or for other reasons not affecting the merits." In holding that it did, on the first motion to dismiss, Judge Rippey relied upon his own decision in Munro v. United States, 10 F. Supp. 412. This view is no longer tenable; his decision was reversed. Munro v. United States, 303 U.S. 36, 58 S.Ct. 421, 82 L.Ed. 633. There it was authoritatively decided...