Miller v. United States, 1802-A.
| Decision Date | 18 February 1936 |
| Docket Number | No. 1802-A.,1802-A. |
| Citation | 13 F. Supp. 684 |
| Parties | MILLER v. UNITED STATES. |
| Court | U.S. District Court — Western District of New York |
Daniel J. O'Mara, of Rochester, N. Y. (Edmund Clynes, of Rochester, N. Y., of counsel), for plaintiff.
George L. Grobe, of Buffalo, N. Y. (Goodman A. Sarachan, of Rochester, N. Y., of counsel), for the United States.
This is a motion to dismiss the petition of the veteran on the ground that it had been filed too late. According to the conceded facts, the last day on which to commence suit was June 19, 1935. The veteran caused a summons to be issued under the hand and seal of the clerk of this court on June 18, 1935, and the same was on that day duly served upon the United States Attorney for the Western District of New York and upon the Attorney General of the United States. On June 21, 1935, the United States Attorney appeared on motion to dismiss on the ground that the action could be begun only by petition, and that the court had no jurisdiction of the action. The motion came on for hearing before Judge Knight, and on July 19, 1935, he made an order for the dismissal of the summons (D.C.) 11 F.Supp. 924. The veteran's petition, verified on August 22, 1935, was served in accordance with the provisions of 28 U.S.C.A. § 763 on August 27, 1935, and proof of service was filed with the clerk of this court on January 18, 1936.
The sole question for determination before the court upon the present motion is whether or not the veteran honestly and in good faith attempted to bring his case before the court for determination upon the merits within the time fixed by Congress. If so, he should not be barred from having the court pass upon the merits of his case because of an alleged defect in process or procedure. Gaines v. City of New York, 215 N.Y. 533, 109 N.E. 594, L.R.A.1917C, 203, Ann.Cas.1916A, 259; Johnson v. United States (C.C.A.) 68 F.(2d) 588.
It appears above that the veteran attempted to commence his suit by the issuance of a summons under the hand and seal of the clerk of the court. I have already held that such issuance of the summons and service constituted a due commencement of a suit under the provisions of 38 U.S.C.A. § 445, and there is no reason why I should change my decision. Munro v. United States (D.C.) 10 F.Supp. 412. Section 445 provides, among other things, that "the procedure in such suits shall be the same as that provided in sections 762 and 763 of Title 28, and section 765 of Title 28 in so far as applicable." Under 28 U.S.C.A. § 762, Congress does not provide that the suit must be brought by the filing of a petition, but does refer to the provisions of 28 U.S.C.A. 41, paragraph 20, and the latter refers generally to jurisdiction of the District Court in certain controversies. There being no express provision by Congress that suit in a case such as this must be brought by the filing of a petition, the provisions of the Conformity Act (28 U.S.C.A. § 724) apply, and under this the procedural requirements for commencing the suit are governed by the Civil Practice Act of the state of New York. The provisions of section 763 are not in conflict with that conclusion, because it is there provided only that a copy of the petition shall be served upon the District Attorney of the United States in the district wherein the suit is brought and a copy shall be mailed by registered mail to the Attorney General of the United States, and proof of such service shall be filed with the clerk of the court in which the suit is brought. While I do not have available or have not made an investigation of the numerous suits brought in this district under the Veterans' Act, in cases which have come to my attention suits have been brought by the filing and service of a summons and complaint in accordance with the New York state practice and, until the decision in the Munro Case above, no case has been brought to my attention where the question of the regularity of such practice has been raised. Even...
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Munro v. United States
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