United States v. Cushman

131 F.2d 1021, 1942 U.S. App. LEXIS 3016

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 2, 1942
• Docket: No. 10262
• Status: Published

Opinion

PER CURIAM.

The appellee procured a judgment in the lower court for the payment of installments alleged to be due upon a war risk insurance policy. The judgment was amended by stipulation of the parties to correct errors in the judgment in regard to the date of proof of permanent and total disability and withdrawing requirement that the installments be paid in the future, the purpose being to conform to the decision of the Supreme Court in United States v. Worley, 281 U.S. 339, 50 S.Ct. 291, 74 L.Ed. 887.

The judgment having been thus amended by stipulation the appellee moves for dismissal of the appeal herein or for the af-firmance of the judgment upon the theory that the judgment finally entered in the case below was a consent judgment.

We cannot agree that the amendment of the judgment by consent to correct mutually acknowledged errors in the judgment in any way deprived the appellant of its right to appeal from the judgment as amended. This question was considered by the Circuit Court of Appeals for the Eighth Circuit in Becker v. Anchor Realty & Investment Co., 71 F.2d 355. We agree with the disposition of that matter made by the Circuit Court of Appeals for the Eighth Circuit.

Motion denied.