Milton v. United States

• Decision Date: 06 July 1939
• Docket Number: No. 9111.,9111.
• Citation: 105 F.2d 253
• Parties: MILTON v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

105 F.2d 253 (1939)

MILTON v. UNITED STATES.

No. 9111.

Circuit Court of Appeals, Fifth Circuit.

July 6, 1939.

Philo Coco, of Marksville, La., for appellant.

Malcolm E. Lafargue, Asst. U. S. Atty., of Shreveport, La., and Thomas E. Walsh, Atty., Department of Justice, of Washington, D. C., for the United States.

Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

The suit to recover for total and permanent disability, was on a war risk insurance policy, which lapsed on July 1, 1919, for nonpayment of the premium due June 1, 1919. Brought in December 1937, it was, upon defendant's exception, that appellant did not file his suit within the time prescribed by statute, dismissed, for want of jurisdiction. The gist of this exception was: that plaintiff had ninety days from the mailing on September 17, 1937, of the letter denying his claim, within which to commence suit; that he did not file his petition until December 17, 1937, ninety-one days thereafter, and did not obtain service on the United States attorney, until December 29, 1937; that therefore, the court was without jurisdiction to entertain the suit, both because, the suit was not in law filed until citation was issued and served, and this was more than twelve days late, and because, if the filing of the petition was the filing of the suit, this was filed not within the ninety days allowed, but one day thereafter.

The District Judge, disagreeing with defendant's view, that the suit was filed too late, if filing the petition was the filing of the suit, agreed with it, that the suit was not filed until issuance and service of process. So, agreeing, he sustained the exception and dismissed the action. Appellant is here insisting: (1) That the filing of his petition was the filing of the suit within the Act of 1936,¹ providing for such filing, and that, filed with the clerk on December 16, it was filed within the ninety days the Act gave; and (2) that if it be considered that it was not filed until December 17, the day the clerk put his file mark on it, it was still filed in time, for by the Act of 1936, he had the time remaining, when in June 1931, he filed his claim, in addition to the ninety days the Act gave. He dismisses the view of the District Judge, that the suit was not filed until service of process had been had, as contrary both to the language the Act uses, and to the uniform current of authority, that the filing of the petition under the Tucker Act, is the filing of a suit for purposes of limitation and of jurisdiction.

We agree with appellant, that the filing of the petition is the filing of the suit, that his petition was filed with the clerk within the ninety days the Act gave for filing suit, and that such filing without more, was sufficient for purposes of jurisdiction and limitation. We therefore, find it unnecessary to determine whether, as plaintiff claims, he had, in addition to the ninety days the Act gave him, the time remaining between the date of his filing claim and July 3, 1931, and what, under the evidence, that remaining amount of time was. Appellee's reliance, on Munro v. United States, 303 U.S. 36, 58 S.Ct. 421, 82 L.Ed. 633, as holding, that, it is not the filing of the petition alone within the time limited for filing suit which gives jurisdiction, but the filing of the petition and issuance and service of process thereon, will not do. What was held there, was, that the filing of a petition was a necessity, and that, issuance of summons, and appearance by the District Attorney in a cause in which no petition was filed, did not toll the statute, nor confer jurisdiction. At the same term, the court, in Bates Manufacturing Company v. United States, 303 U.S. 567, 58 S.Ct. 694, 82 L.Ed. 1020, precisely and finally determined that the filing of a petition is the beginning of a suit under the Tucker Act, and that whatever effect lack of diligence in obtaining service, might have² on the suit, after it had been begun, the filing of the petition is, quoad limitation and jurisdiction, the beginning of the suit. c/f Port v. Litolff, 5 Cir., 103 F.2d 302. It remains only to consider whether, when plaintiff lodged his petition with the clerk on December 16, within the ninety days the Act gave, he filed it within the legal meaning of that term. We think it may not be doubted that he did.

The word "filed" the Act uses, is, as applied to court proceedings, a word of art, having a long established and well understood meaning, deriving from the practice of filing papers on a...