McMullin v. United States

Court of Claims

McMullin v. United States

49 Ct. Cl. 379, 1914 U.S. Ct. Cl. LEXIS 203, 1914 WL 1411

CourtUnited States Court of Claims

DecidedMarch 2, 1914

DocketNo. 26591

StatusPublished

Cited by1 cases

This text of 49 Ct. Cl. 379 (McMullin v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McMullin v. United States, 49 Ct. Cl. 379, 1914 U.S. Ct. Cl. LEXIS 203, 1914 WL 1411 (cc 1914).

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Opinion

Per CuRiam :

The claimant made a motion, which was allowed October 25, 1910, to discontinue his cause, reading as follows:

“ Now come George A. & William- B. King, attorneys of record in the above entitled cause, and ask leave to discontinue the same without prejudice to the claimant’s right to have the case reinstated in the event that the accounting officers do not settle the claim.”

Subsequently a motion was made to set aside the order of discontinuance allowed as aforesaid and to restore the case to the docket. The motion to reinstate having been made after the end of the term in which the case was discontinued, and being objected to by the defendants, was overruled. A motion was then made for a rehearing on the motion to set aside the said discontinuance and to restore the case to the docket, which latter motion was sent to the law calendar on April 5, 1912.

The cause was discontinued on October 25, 1910, and the first motion to reinstate was made on December 16, 1911, and overruled on January 6, 1912, as out of the court’s jurisdiction. It is now made to appear that the purpose of the discontinuance was to enable the claimant to make a bona fide effort to secure a settlement through the Treasury Department, which would not consider any settlement so long as the case was pending in this court, and that the wording of the motion above quoted was to secure the right of the claimant to have his case reinstated in the event a settlement was not made.

[381]*381The rule is established in this court that a motion dismissing a case is out of the jurisdiction of the court unless brought to its attention during the term in which the order of dismissal is made unless for some reason it is shown that the order of dismissal was void; but it seems to the court that the peculiar facts surrounding the dismissal of this case as well as the terms under which it was dismissed authorize the court to reinstate the case and to restore the same to the docket. The court will, however, in the future adhere to the rule above announced and will not indulge in the practice of allowing a discontinuance or dismissal coupled with any right of restoration to the docket, and it is so ordered.

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Per CuRiam :

The claimant made a motion, which was allowed October 25, 1910, to discontinue his cause, reading as follows:

“ Now come George A. & William- B. King, attorneys of record in the above entitled cause, and ask leave to discontinue the same without prejudice to the claimant’s right to have the case reinstated in the event that the accounting officers do not settle the claim.”

Subsequently a motion was made to set aside the order of discontinuance allowed as aforesaid and to restore the case to the docket. The motion to reinstate having been made after the end of the term in which the case was discontinued, and being objected to by the defendants, was overruled. A motion was then made for a rehearing on the motion to set aside the said discontinuance and to restore the case to the docket, which latter motion was sent to the law calendar on April 5, 1912.

The cause was discontinued on October 25, 1910, and the first motion to reinstate was made on December 16, 1911, and overruled on January 6, 1912, as out of the court’s jurisdiction. It is now made to appear that the purpose of the discontinuance was to enable the claimant to make a bona fide effort to secure a settlement through the Treasury Department, which would not consider any settlement so long as the case was pending in this court, and that the wording of the motion above quoted was to secure the right of the claimant to have his case reinstated in the event a settlement was not made.

[381]*381The rule is established in this court that a motion dismissing a case is out of the jurisdiction of the court unless brought to its attention during the term in which the order of dismissal is made unless for some reason it is shown that the order of dismissal was void; but it seems to the court that the peculiar facts surrounding the dismissal of this case as well as the terms under which it was dismissed authorize the court to reinstate the case and to restore the same to the docket. The court will, however, in the future adhere to the rule above announced and will not indulge in the practice of allowing a discontinuance or dismissal coupled with any right of restoration to the docket, and it is so ordered.

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Bluebook (online)

49 Ct. Cl. 379, 1914 U.S. Ct. Cl. LEXIS 203, 1914 WL 1411, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcmullin-v-united-states-cc-1914.

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