Thompson v. United States, 6971.

• Decision Date: 21 November 1962
• Docket Number: No. 6971.,6971.
• Parties: John N. THOMPSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

312 F.2d 516 (1962)

John N. THOMPSON, Appellant, v. UNITED STATES of America, Appellee.

No. 6971.

United States Court of Appeals Tenth Circuit.

November 21, 1962.

Charles S. Scott, Topeka, Kan., and J. Nelson Thompson, Kansas City, Kan. (Elisha Scott, John J. Scott, and Samuel C. Jackson, Topeka, Kan., on the brief), for appellant.

Elmer Hoge, Asst. U. S. Atty. (Newell A. George, U. S. Atty., on the brief), for appellee.

Before LEWIS, BREITENSTEIN and SETH, Circuit Judges.

SETH, Circuit Judge.

The United States brought this suit in the United States District Court for the District of Kansas in 1959 to recover $3,100.00 and interest from John N. Thompson, the appellant. This amount was allegedly overpaid appellant by reason of the government's failure to make the proper deductions from his military pay during the time he had a Class E allotment in force. Appellant filed a counterclaim which was ordered dismissed by this court on appeal. A motion by appellant for summary judgment was denied, the case tried, and the trial court awarded the government $3,100.00 and Thompson has appealed.

It was not disputed that appellant authorized in 1946 a deduction from his pay for a Class E allotment of $100.00 per month to be paid to Maud O. Thompson, his mother. It was also undisputed that this authorization was never withdrawn and that no deductions were made from appellant's pay. The trial court at a pretrial conference determined that the only issue was whether or not appellant's mother had received the allotment checks. At trial, the government introduced as evidence of payment a certificate of the United States General Accounting Office showing that 31 checks of $100.00 each for each month from November 1946 through May 1949 made payable to Maud O. Thompson had been negotiated and paid by the Treasurer. By the deposition of appellant's 84-year-old mother, it was shown that she maintained a bank savings account during the period in question which showed deposits of $50.00 each for several of the months while the allotment was in force. Most of these deposits were made during the first of the month. She testified she could not remember receiving any checks of $100.00 from the United States or anyone else during the period in question. She could not remember where the money came from she deposited in her savings account, but during this time she rented rooms in her house, held various jobs, and received money from her son and daughter. On this evidence the trial court found "that pursuant to said authorization the United States Government did pay to the defendant's mother, Maud O. Thompson, the sum of $100.00 per month beginning with the month of November, 1946, and each month thereafter until and including the month of May, 1949, or a total of $3,100.00."

Appellant took an appeal in which he raises the questions of limitations, laches, venue, and whether the trial court's overruling of his motion for summary judgment was improper.

The appellant, as one of his first points, argues that there is a statute of limitations which is applicable to this action. He refers to 31 U.S.C. § 129, which in part reads as follows:

"No proceeding in any court shall be brought by the United States or by any agency or official of the United States to enforce the liability of any endorser, transferor, or depositary, or financial agent, arising out of a forged or unauthorized signature or endorsement upon or alteration of any check, checks, warrant, or warrants issued by the Secretary of the Treasury, the Postmaster General, the Treasurer and Assistant Treasurers of the United States, or by disbursing officers and agents of the United States, unless such proceeding is commenced within six years after the presentation to the Treasurer of the United States or other drawee of such issued checks or warrants for payment of such check, checks, warrant, or warrants, or unless within that period written notice shall have been given by the United States or an agency thereof to such endorser, transferor, or depositary, or financial agent of a claim on account of such liability."

Appellant next refers to 31 U.S.C. § 122, as a limitation on this suit. This section reads in part as follows:

"Hereafter all claims on account of any check, checks, warrant, or warrants appearing from the records of the General Accounting Office or the Treasury Department to have been paid, shall be barred if not presented to the General Accounting Office or the Treasurer of the United States within six years after the date of issuance of the check, checks, warrant, or warrants involved."

An examination of these provisions, together with their legislative history (1957 U.S.Code Cong. & Ad. News, page 1674), indicates that they were not intended to apply to actions of the character now before us. This is a suit for reimbursement of the government for its failure to make proper deductions from the service pay of appellant. The limitations cited are intended to apply against the United States on checks or warrants where there is a forged or unauthorized endorsement or alteration. The second provision...