Miller v. United States

114 F.2d 267, 1940 U.S. App. LEXIS 4794
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 17, 1940
Docket7068
StatusPublished
Cited by42 cases

This text of 114 F.2d 267 (Miller v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Miller v. United States, 114 F.2d 267, 1940 U.S. App. LEXIS 4794 (7th Cir. 1940).

Opinions

EVANS, Circuit Judge.

This is an appeal by a veteran of the World War from a judgment denying him any recovery under the “automatic” war risk insurance provision of the U. S. statute (40 Stat. 409, Act of October 6, 1917, § 401, quoted infra) which automatically gave war risk insurance protection to any soldier who became totally and permanently disabled within 120 days from its enactment, October' 6, 1917.

Plaintiff did not take out war risk insurance, but he was found by the trial court (jury waived), to have become permanently and totally disabled within the 120 day provision of the statute. His disabilities were goitre, heart trouble, etc., and he was discharged from service on a doctor’s certificate stating that he was no longer physically fit for military duty. The Government has paid the veteran $19,000 in disability compensation payments up to the time of suit.

The trial court first entered judgment permitting recovery for a. limited period' and later, after a notice of appeal had been filed,, entered a second judgment wherein recovery was denied, and the action dismissed.

Two questions confront us:

(1) Did the District Court have jurisdiction to vacate its final judgment for the plaintiff, after a notice of an appeal therefrom had been taken, and enter another final judgment for defendant?

(2) Is the July 3, 1930 amendment (46. Stat. 992), lengthening the period of the statute of limitations applicable to causes of action for claims like plaintiff’s growing out of what is known as automatic insurance?

■ The facts: Plaintiff enlisted in July, 1917, and was discharged December 20, 1917-. He filed a claim on June 10, 1931, upon which “notice of disagreement” was sent him, November 9, 1932. He began this action, November 14, 1932.

No question of total and permanent disability is here involved. The evidence is not even before us. The issue, is whether the cause of action is governed by the Í928 or 1930 statute of limitations. Sec. 19, Act of June 7, 1924, 43 Stat. 612, amended by Act of May 29, 1928, § 1, 45 Stat. 964, as amended July 3, 1930> § 4, 46 Stat. 992, 38 U.S.C.A. § 445. Stated in ‘ another way, does the amendment of July 3, 1930, permitting suit within one year after date of amendment apply to automatic insurance ?

The District Court first concluded, October 29, 1938, that a judgment should go to the veteran for monthly claims accruing within the six years preceding the filing of his claim, but not for the entire period from 1917. Defendant filed a notice of appeal from this judgment, on February 3, 1939; a stipulation as to contents of record was filed, as was a statement of points, on February 11, and on March 6, a motion and stipulation were filed in the District Court for an order extending the time to file the record in the Circuit Court of Appeals for a period of fifty days from March 15, which motion was granted.

On April 11 the Government petitioned for a rehearing in the District Court and filed a motion to vacate the findings and conclusions, on the ground that the Tow-ery case (Towery v. United States, 7 Cir., 97 F.2d 906) relied on by the trial court in its memorandum, had been reversed by the Supreme Court. 306 U.S. 324, 59 S.Ct. 522, 83 L.Ed. 678. The trial court granted this motion over plaintiff’s objections, which did not include any want of jurisdiction on the part of the District Court to vacate ,a judgment which was pending in this court on appeal.

On April 25 the court vacated the judgment in plaintiff’s favor and entered one for the defendant. It dismissed plaintiff’s action. In doing so it relied on the Towery decision, United States v. Towery, 306 U.S. 324, 59 S.Ct. 522, 83 L.Ed. 678.

On May 5, the trial court granted defendant’s motion to dismiss its appeal from the first judgment pending in this court. On July 21, plaintiff filed his notice of appeal from the second judgment.

Jurisdiction. (a) The new Rules of Civil Procedure seem to stress the filing of the notice of appeal as the crux of “taking an appeal.” Rule 73(a), 28 U. S.C.A. following section 723c. The rule specifically provides that “failure * * * to take any of- the further steps to secure the review * * * does not affect the validity of the appeal, but is ground only for such remedies as are specified in this rule or, when no remedy is specified, for such action as the appellate court deems [269]*269appropriate, which may include dismissal of the appeal.” Not even the clerk’s failure to notify other' parties of the filing of the notice of appeal affects its validity (Subsec. (b).

(b) The new Rules of Civil Procedure also emphasize the finality of judgments and specifically limit the time within which they may be changed by the trial court. Motions for new trial must be made within ten days (Rule 59(b) after the entry of the judgment, or in the case of newly discovered evidence, within the time in which an appeal may be taken. Clerical mistakes and errors arising from oversight or omission may be corrected in a judgment by the court at any time (Rule 60), and a trial court may relieve a party from a judgment entered through mistake, inadvertence, surprise, or excusable neglect, but such motion must be made within a reasonable time, not exceeding six months (Rule 60(b). Rule 52(b) provides for amendment, upon motion of a party made not later than ten days after entry of judgment, of findings and judgment.

Our conclusions are: (a) The District Court has no authority to vacate a judgment by it entered in an action at law after an appeal from said judgment has been taken.

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Bluebook (online)
114 F.2d 267, 1940 U.S. App. LEXIS 4794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-united-states-ca7-1940.