Robinson v. United States, No. 7910.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtFOSTER, SIBLEY, and HUT CHESON, Circuit
Citation84 F.2d 885
PartiesROBINSON v. UNITED STATES
Docket NumberNo. 7910.
Decision Date28 July 1936

84 F.2d 885 (1936)

ROBINSON
v.
UNITED STATES

No. 7910.

Circuit Court of Appeals, Fifth Circuit.

July 28, 1936.


Elton Cruse, of Beaumont, Tex., for appellant.

Armistead L. Boothe, Atty., Department of Justice, of Washington, D. C., S. D. Bennett, U. S. Atty., of Beaumont, Tex., and D. Vance Swann, Atty., Bureau of War Risk Litigation, of Dallas, Tex., for the United States.

Before FOSTER, SIBLEY, and HUT CHESON, Circuit Judges.

FOSTER, Circuit Judge.

Appellant brought this suit to recover on a policy of war risk insurance, alleging payment of premiums through June, 1920,

84 F.2d 886
total and permanent disability existing before that time, and a disagreement resulting from a letter dated November 9, 1931, rejecting his claim. At the close of plaintiff's evidence, on motion of the United States, a verdict was directed dismissing the suit on the sole ground that the evidence was not sufficient to establish final denial of plaintiff's claim for insurance benefits, and therefore the court did not have jurisdiction to entertain the suit. This appeal followed

Appellee moved to dismiss the appeal on these grounds: (1) That the appeal was not taken in time; (2) that the assignment of errors was not filed with the petition for appeal; and also moved to strike the bill of exceptions, on the ground that it does not contain all the evidence.

It appears the judgment was entered on March 15, 1935, and on April 5, 1935, appellant petitioned for leave to prosecute his appeal in forma pauperis. An order permitting him to do so was entered on April 10, 1935. This was sufficient to allow the appeal and was timely. The second ground for dismissal is based on our rule 11, which provides that appellant shall file with the clerk of the court below, with his petition for appeal, an assignment of errors, and no appeal shall be allowed until such assignment of errors is filed. The rule was not complied with, but we have repeatedly held that the rule will not be rigidly enforced where the rights of appellee would not be affected and injustice would result to appellant. Such is the case here presented. The motion to dismiss is denied. The bill of exceptions is authenticated by the signature of the judge and contains all the evidence necessary to consider the ruling of the court on the motion to direct the verdict. Since neither the court nor the jury passed upon the merits of the case, the bill of exceptions is sufficient. The motion to strike is denied.

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3 practice notes
  • Timoni v. United States, No. 21896.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 13, 1969
    ...could not readily protect his rights." Atkinson v. United States, 39 F.Supp. 198, 200 (D.Mass. 1941). See also Robinson v. United States, 84 F.2d 885, 887 (5th Cir. 1936); Danner v. United States, 100 F.2d 43, 45-46 (8th Cir. 34 See United States v. Pastell, 91 F.2d 575, 579 (4th Cir. 1937)......
  • American Const. Co. v. United States, No. 48992.
    • United States
    • Court of Federal Claims
    • October 7, 1952
    ...change in the formula for computation of the period of appeal, obviating further dispute on this point. Robinson v. United States, 5 Cir., 84 F.2d 885. The language of the statute of limitations contained in the Lucas Act, supra, supports defendant's contention here even less than that of t......
  • United States v. Dieckmann, No. 6572.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 13, 1939
    ...792, 793. See also, for similar rulings of other Circuit Courts of Appeal, Bernard v. Lea, 4 Cir., 210 F. 583; Robinson v. U. S., 5 Cir., 84 F.2d 885; Robertson v. Morganton Full Fashioned Hosiery Co., 4 Cir., 95 F.2d 780. We are of opinion that since the rule as to the filing of assignment......
3 cases
  • Timoni v. United States, No. 21896.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 13, 1969
    ...could not readily protect his rights." Atkinson v. United States, 39 F.Supp. 198, 200 (D.Mass. 1941). See also Robinson v. United States, 84 F.2d 885, 887 (5th Cir. 1936); Danner v. United States, 100 F.2d 43, 45-46 (8th Cir. 34 See United States v. Pastell, 91 F.2d 575, 579 (4th Cir. 1937)......
  • American Const. Co. v. United States, No. 48992.
    • United States
    • Court of Federal Claims
    • October 7, 1952
    ...change in the formula for computation of the period of appeal, obviating further dispute on this point. Robinson v. United States, 5 Cir., 84 F.2d 885. The language of the statute of limitations contained in the Lucas Act, supra, supports defendant's contention here even less than that of t......
  • United States v. Dieckmann, No. 6572.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 13, 1939
    ...792, 793. See also, for similar rulings of other Circuit Courts of Appeal, Bernard v. Lea, 4 Cir., 210 F. 583; Robinson v. U. S., 5 Cir., 84 F.2d 885; Robertson v. Morganton Full Fashioned Hosiery Co., 4 Cir., 95 F.2d 780. We are of opinion that since the rule as to the filing of assignment......

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