Spencer v. United States
| Decision Date | 04 March 1936 |
| Docket Number | No. 4703.,4703. |
| Citation | 14 F. Supp. 46 |
| Parties | SPENCER v. UNITED STATES. |
| Court | U.S. District Court — District of Massachusetts |
Theodore V. Quinlivan, of Springfield, Mass., and James P. Boland, of Northampton, Mass., for plaintiff.
Francis J. W. Ford, U. S. Atty., and Timothy A. Curtin, Asst. U. S. Atty., both of Boston, Mass.
On February 10, 1931, the plaintiff, a veteran, signed and made oath to a petition setting forth that he had a claim against the United States on a war risk insurance policy, but that the United States disagreed with him as to his claim, and asking for a judgment against the United States for the amount of the policy. The plaintiff died on March 14, 1931. On March 31, 1931, the plaintiff's attorney, being unaware of the plaintiff's death, filed the petition in the clerk's office of the District Court of the United States for the District of Massachusetts. At the same time the plaintiff's attorney served a copy of the petition on the United States attorney, mailed a copy by registered mail to the Attorney General of the United States, and filed the required affidavit with the clerk that he had done so. On April 6, 1931, the defendant filed an answer asking that the action be abated on the ground that the plaintiff was dead when the suit was begun.
On April 7, 1931, an administrator of the estate of Spencer was duly appointed. Shortly thereafter, a special assistant United States attorney in Boston wrote a letter to the plaintiff's counsel and stated that it would be possible for the administrator to intervene in this action, and that it would not be necessary to start a new suit. The period of limitation within which this petition could be brought expired on July 3, 1931. On October 29, 1935, the administrator filed a motion to be substituted as a party plaintiff in this action. The case has been heard on the answer in abatement, and the motion to substitute.
This suit is brought against the United States by authority of title 38, § 445 of the United States Code (38 U.S.C.A. § 445) which provides that the procedure in suits authorized by that section is to be the same as that provided in sections 762, 763, and 765 of title 28 of the Code (28 U.S.C.A. §§ 762, 763, and 765), in so far as applicable. I am of the opinion that a suit under sections 762 and 763 of title 28 of the Code (28 U.S.C.A. §§ 762 and 763) cannot be regarded as commenced, so that it will not abate with the death of the plaintiff when the plaintiff has signed and sworn to his petition, and nothing more has been done. It is the contention of the plaintiff that, since sections 762 and 763 make no mention of when the suit is to be regarded as begun, this question, in accordance with the provisions of the Conformity Act, title 28 U.S.Code, § 724 (28 U.S.C.A. § 724), must be regarded as governed by the law of the state where the suit is brought. The plaintiff argues that since, in Massachusetts, a lawsuit is regarded as dating from the writ, applying that rule to the present case, the suit should be regarded as commenced from the date of the petition, which the plaintiff regards as the paper analogous to the writ in the present case.
As a result of cases arising under the statute of limitations, there is some doubt whether, under the laws of Massachusetts, an action would be regarded as begun during the lifetime of the plaintiff where more than a month intervened between the date of the writ and the death of the plaintiff, during which time no attempt was made either to serve the writ or enter it in any court. See Mayor of Revere v. Special Judge of District Court of Chelsea, 262 Mass. 393, 160 N.E. 431; Rosenblatt v. Foley, 252 Mass. 188, 147 N.E. 558.
But it is unnecessary to decide what the law of Massachusetts would be in this regard. This is a suit under a federal statute, in which permission has been granted to bring suit against the United States. It is well settled that in such cases the plaintiff must strictly follow the procedure specified by the statute granting leave to sue. Schillinger v. United States, 155 U. S. 163, 15 S.Ct. 85, 39 L.Ed. 108; ...
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Munro v. United States
...affirmed 297 U.S. 121, 56 S.Ct. 390, 80 L.Ed. 520; Creasy v. United States, 4 F.Supp. 175, 179 (D.C. W.D.Va.); Spencer v. United States, 14 F.Supp. 46, 47 (D.C.D.Mass.); Henry v. United States, 15 F.Supp. 651 (D.C.M.D. Pa.). On the other hand, Judge Dickinson held in Mill Creek & M. N. & R.......
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Bates Mfg. Co. v. United States
...we so hold. See Munro v. United States, 2 Cir., 89 F.2d 614, 616; Creasy v. United States, D.C., 4 F.Supp. 175, 179; Spencer v. United States, D.C., Mass., 14 F.Supp. 46. See, also, Walton v. United States, 8 Cir., 73 F.2d 15, where we think the court reached the correct result, but by a wr......
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Bates Mfg. Co. v. United States, 3580.
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