Harris v. United States

• Decision Date: 02 May 1934
• Docket Number: No. 3563.,3563.
• Citation: 70 F.2d 897
• Parties: HARRIS et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

70 F.2d 897 (1934)

HARRIS et al. v. UNITED STATES.

No. 3563.

Circuit Court of Appeals, Fourth Circuit.

May 2, 1934.

R. H. McNeill, of Washington, D. C. (McNeill & McNeill, of Washington, D. C., and J. E. Carpenter, of Maxton, N. C., on the brief), for appellants.

W. H. Fisher, U. S. Atty., of Clinton, N. C.

Before PARKER and NORTHCOTT, Circuit Judges, and COLEMAN, District Judge.

WILLIAM C. COLEMAN, District Judge.

This appeal arises out of a suit upon a war risk insurance policy, the appellants being the representatives of the beneficiary under the policy, now deceased.

After submission of all of the evidence, both the government and the plaintiffs (appellants) moved for directed verdicts, and after considering both motions, the court directed a verdict in favor of the government, answering the three issues, which had been submitted as follows:

"I. Was Solomon McNeill, the decedent, permanently and totally disabled within the meaning of the War Risk term insurance contract on July 31st, 1919 presumably intended to be the date of decedent's discharge from service, although the date appears elsewhere in the record to have been July 28th, 1919? Answer: Yes.

"II. Is the claim of plaintiffs barred by the statute of limitations pleaded in this case, which is set out in section 445, Title 38, U. S. Code? Answer: Yes.

"III. What amount are plaintiffs entitled to recover of defendant? Answer: Nothing."

The term of court at which the case was tried would have expired on March 23, 1933, but on that date the trial judge, at the request of plaintiffs, as a result of their representations that an appeal was contemplated, signed an order extending the term of court for one hundred and twenty days from that date, that is, until July 21st, "for the purpose of settling and signing bill of exceptions in any of the cases tried at this term of court in which an appeal may be taken to the Circuit Court of Appeals." Judgment in favor of the government was entered on May 18, 1933. Thereafter, on August 11, 1933, the trial judge signed a further order extending the term for sixty days more, presumably not realizing that the original one hundred and twenty days' extension had already expired. Then, on September 19, 1933, a bill of exceptions was presented to the trial judge for his approval, but he refused to sign it on the ground that the term of court at which the case had been tried had expired on July 21, 1933, that is, before the second order of August 11, 1933, purporting to extend it, had been signed; that, therefore, this latter order was null and void; and that he was without power to sign the bill of exceptions. The record does not disclose that there was any rule of the District Court providing for extension of terms.

There are three assignments of error,...