United States v. Beaman

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: BRYAN, HUTCHESON, and WALKER, Circuit
• Citation: United States v. Beaman, 61 F.2d 493 (5th Cir. 1932)
• Decision Date: 31 October 1932
• Docket Number: No. 6514.,6514.
• Parties: UNITED STATES v. BEAMAN.

61 F.2d 493 (1932)

UNITED STATES v. BEAMAN.

No. 6514.

Circuit Court of Appeals, Fifth Circuit.

October 31, 1932.

C. P. Goree, Asst. U. S. Atty., and Harry A. Wallerstein, Atty., Veterans' Administration, both of Atlanta, Ga., for the United States.

Thomas M. Stubbs and Wm. Hart Sibley, both of Atlanta, Ga., for appellee.

Before BRYAN, HUTCHESON, and WALKER, Circuit Judges.

WALKER, Circuit Judge.

The appellee moved that the appeal be dismissed on the ground that the petition for appeal was not allowed and filed within three months of the date of the entry of the judgment complained of. The judgment was entered in open court on July 29, 1931, and filed the same day. The petition for appeal and the written order of the judge allowing it were dated October 29, 1931, and were filed October 30, 1931. On the defendant's præcipe, addressed to the clerk of the court, is the following statement, signed by plaintiff's attorney:

"Due service of the within and foregoing præcipe is hereby acknowledged and all other and further service is hereby waived.

"This 29 day of October, 1931."

That instrument was filed October 30, 1931. The statute provides that: "No * * * appeal intended to bring any judgment or decree before a circuit court of appeals for review shall be allowed unless application therefor be duly made within three months after the entry of such judgment or decree." 28 USCA § 230. The day of the entry of the judgment or decree must be excluded in computing the time for taking an appeal to review it. Smith v. Gale, 137 U. S. 577, 11 S. Ct. 185, 34 L. Ed. 792; Burnet v. Willingham Loan & Trust Company, 282 U. S. 437, 51 S. Ct. 185, 75 L. Ed. 448. It follows that the appeal was in time if it was applied for and allowed on October 29, 1931. No formal order of allowance is necessary. Brandies v. Cochrane, 105 U. S. 262, 26 L. Ed. 989. The time of the allowance of an appeal may be shown otherwise than by a filing with the clerk of an order allowing it. Donaldson v. Baltimore Acceptance Corporation (C. C. A.) 38 F.(2d) 215. Though the filing date on the statement entered upon defendant's præcipe and signed by plaintiff's attorney was October 30, 1931, that statement shows that before it was filed, on October 29, 1931, within the time allowed for applying for an appeal, plaintiff's attorney in effect admitted that an appeal had been taken, and waived formal service of citation. We think the record sufficiently shows that the appeal was applied for within the time allowed by the statute. The motion to dismiss the appeal is denied.

This was an action by the appellee against the United States to recover the sum of $1,368.83 claimed to be due to him under the provisions of the Emergency Officers' Retirement Act of May 24, 1928, otherwise called the Tyson-Fitzgerald Act (45 Stat. 735 38 USCA §§ 581, 582). The petition contained allegations to the following effect: Petitioner enlisted in the United States Navy in August, 1907, and remained in the service until June, 1922, at which time he was transferred to the United States Fleet Naval Reserve, and remained in said Fleet Naval Reserve until July, 1929, at which time he was honorably discharged. During the time petitioner was in the United States Naval Reserve he drew as retainer pay from the United States government a stated sum per month and also compensation for service-connected disability. During the period from 1918 to December, 1921, petitioner held the ranks of boatswain, ensign, and lieutenant, junior grade. Under the provisions of the abovementioned act petitioner applied for retirement under and for the full benefits of that act, and his application was granted, effective June 6, 1928. Under that act petitioner was entitled by virtue of his rank and service to the sum of $150 per month from thenceforward. Under that act there accrued to petitioner's benefit approximately the sum of $2,550, less stated amounts properly deductible therefrom; the...