United States v. Lindholm

• Decision Date: 04 November 1935
• Docket Number: No. 7577.,7577.
• Citation: 79 F.2d 784,103 ALR 213
• Parties: UNITED STATES v. LINDHOLM et al.
• Court: U.S. Court of Appeals — Ninth Circuit

103 ALR 213, 79 F.2d 784 (1935)

UNITED STATES v. LINDHOLM et al.

No. 7577.

Circuit Court of Appeals, Ninth Circuit.

November 4, 1935.

Peirson M. Hall, U. S. Atty., of Los Angeles, Cal., and Will G. Beardslee, Director, Bureau of War Risk Litigation, of Washington, D. C., and Wilbur C. Pickett and Fendall Marbury, Sp. Assts. to Atty. Gen., for the United States.

James H. O'Neill, of Los Angeles, Cal., for appellee.

Before WILBUR, GARRECHT, and DENMAN, Circuit Judges.

DENMAN, Circuit Judge.

Albert L. Lindholm brought suit against the United States in 1932, to recover total disability payments under a policy of war risk insurance, alleging his service in the armed forces of defendant, the perfecting of a policy of insurance, his disability, and refusal of the government to make the payments demanded.

Subsequently the original plaintiff died, and Albert Julian Lindholm, his executor, and one of the present appellees, was substituted as plaintiff by stipulation. In a second amended complaint, the executor sued on the testator's original cause of action and, in a separate count, joins with Martha May Trostler, the other appellee here, in a suit on the beneficiary provisions of the policy.

The United States filed an answer in the form of a general denial, whereupon the appellees moved for summary judgment under section 437c of the California Code of Civil Procedure, as added by St. 1933, p. 1848, § 27, filing affidavits as required. Upon failure of the defendant to file counter affidavits, the court struck out the answer and gave judgment for appellees. There were no opinion, findings, and conclusions as required by 28 USCA § 764. The United States appeals.

The appeal presents two questions. (1) Are the federal courts in California required by the Conformity Act (28 USCA § 724) to enforce the California Summary Judgment Act (Cal. Code Civ. Proc. § 437c, as added in 1933) in ordinary suits upon a debt or a liquidated demand? (2) If federal courts have such power, are the provisions of the Tucker Act (24 Stat. 505), which controls suits to recover debts or liquidated demands under the World War Veterans' legislation (38 U. S. C. Supp. VII, § 445 38 USCA § 445), so inconsistent with the California Summary Judgment Law that judgment under the latter cannot be rendered in such suits?

1. This court does not question the desirability of shortening the procedure in civil suits by the elimination of unnecessary delays caused by answers technically presenting an issue and yet not substantially grounded in the defendant's facts. In view of our answer to the second question above stated, it is unnecessary for us to discuss it, other than point out that similar provisions for summary judgments have been recognized as controlling in federal courts. Fidelity & Deposit Co. v. U. S., 187 U. S. 315, 23 S. Ct. 120, 47 L. Ed. 194; Hoff v. St. Paul-Mercury Indemnity Co. (C. C. A. 2d) 74 F.(2d) 689; Maryland Casualty Co. v. Sparks (C. C. A. 6th) 76 F.(2d) 929, 933.

2. Analysis of the provisions of the respective statutes compels a negative answer to the second question.

The Summary Judgment Act of California (Code of Civ. Proc. § 437c, as

added by Act June 5, 1933, c. 744, p. 1848, § 27) provides in part as follows:

"In superior courts and municipal courts when an answer is filed in an action to recover upon a debt or upon a liquidated demand, * * * if it is claimed that there is no defense to the action, on motion of the plaintiff, after notice of the time and place thereof in writing served on the answering defendant at least ten days before such motion, supported by affidavit of any person or persons having knowledge of the facts, the answer may be stricken out and judgment may be entered, in the discretion of the court, unless the defendant, by affidavit or affidavits shall show such facts as may be deemed by the judge hearing the motion sufficient to entitle him to defend. A judgment so entered is an appealable judgment as in other cases.

"The affidavit or affidavits in support of the motion must contain facts sufficient to entitle plaintiff to a judgment in the action, and the facts stated therein shall be within the personal knowledge of the affiant, and shall be set forth with particularity, and each affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently thereto.

"The affidavit or affidavits in opposition to said motion shall be made by the defendant, or by any other person having knowledge of the facts, and together shall set forth facts showing that the defendant has a good and substantial defense to the plaintiff's action (or to a portion thereof) upon the merits. The facts stated in each affidavit shall be within the personal knowledge of the affiant, shall be set forth with particularity, and each affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently thereto. When the party resisting the motion appears in a representative capacity, such as a trustee, guardian, executor, administrator, or receiver, then the affidavit in opposition by such representative may be made upon his information and belief."

The pertinent provisions of the Tucker Act, codified in sections 762 and 763 of title 28 of the U. S. Code (28 USCA §§ 762, 763) and made controlling in suits under the World War Veterans' Act by section 19 thereof, are as follows:

"§ 762. Petition in suit against United States. The plaintiff in any suit brought under the provisions of section 41, paragraph 20, of this title shall file a petition, duly verified with the clerk of the respective court having jurisdiction of the case, and in the district where the plaintiff resides. Such petition shall set forth the full name and residence of the plaintiff, the nature of his claim, and a succinct statement of the facts upon which the claim is based, the money or any other thing claimed, or the damages sought to be recovered and praying the court for a judgment or decree upon the facts and law. (Mar. 3, 1887, c. 359, § 5, 24 Stat. 506.)

"§ 763. Same; service; appearance by district attorney. The plaintiff shall cause a copy of his petition filed under section 762 of this title, to be served upon the district attorney of the United States in the district wherein suit is brought, and shall mail a copy of the same, by registered letter, to the Attorney General of the United States, and shall thereupon cause to be filed with the clerk of the court wherein suit is instituted an affidavit of such service and the mailing of such letter. It shall be the duty of the...