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Miller v. United States.

December 20, 1940

MILLER
v.
UNITED STATES.



Appeal from the District Court of the United States for the Eastern District of Illinois; Walter C. Lindley, Judge.

Author: Evans

Before EVANS, TREANOR, and KERNER, Circuit Judges.

EVANS, Circuit Judge.

This is an appeal by the Government in a war risk "automatic" insurance case wherein the District Court entered a judgment on October 29, 1938, 24 F.Supp. 958, awarding to appellee a recovery for a limited period, to-wit, six years prior to filing of veteran's claim in 1931.

This same litigation was before this court on the veteran's appeal. See 114 F.2d 767.

After the Government had filed a notice of appeal (on February 3, 1939) from the October, 1938, judgment, it obtained a rehearing in the District Court, which resulted in a vacation of the 1938 judgment and a dismissal of the veteran's suit. This action was taken on the authority of the subsequently decided Towery case. United States v. Towery, 306 U.S. 324, 59 S. Ct. 522, 83 L. Ed. 678. On May 5, 1939, the trial court granted the Government's motion to dismiss its appeal from the 1938 judgment.

Thereupon (July 21, 1939) the veteran filed notice of appeal from the second - the dismissal of suit - judgment. On the veteran's appeal from this second judgment, this court held: (1)(a) That the trial court was without jurisdiction to vacate a former judgment after notice of appeal therefrom had been filed. (1)(b) The trial court had no authority to dismiss an appeal pending in this court. 114 F.2d 267, 270.

This court in an obiter (made to "avoid future litigation") considered the effect of the July 3, 1930 amendment, 38 U.S.C.A. ยง 445, extending the statute of limitations, upon automatic insurance. Sec. 401 of the War Risk Insurance Act, 40 Stat. 409. We concluded the extension was inapplicable to war risk automatic insurance and, a fortiori, this veteran was barred from all recovery. There was a dissent from this ruling.

We there stated that the District Court's second judgment, of dismissal of the suit, must be reversed as of no efficacy, and the opinion added, "The appeal of defendant [the Government] from the first judgment is still pending but it is not before us at this time. The District Court's order dismissing the appeal from the first judgment is of no force or effect."

In August, 1940, this court granted the Government leave to docket its appeal from the first judgment. The veteran moved to dismiss this appeal, which motion was denied without prejudice to a renewal thereof at the hearing on the merits.

Validity of Appeal. The veteran moves to dismiss this appeal (which it must be conceded has had an "unusual" career), on the ground that no record on appeal was filed within fifty days from March 15, 1939 (May 4, 1939), as required by Rule 73(g) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.

Rule 73(g) provides that the record "shall be filed with the appellate court and the action there docketed within 40 days from the date of the notice of appeal; except that, when more than one appeal is taken from the same judgment to the same appellate court, the district court may prescribe the time for filing and docketing, which in no event shall be less than 40 days from the date of the first notice of appeal. In all cases, the district court in its discretion and with or without motion or notice may extend the time for filing the record on appeal and docketing the action, if its order for extension is made before the expiration of the period for filing and docketing as originally prescribed or as extended by a previous order; but the district court shall not extend the time to a day more than 90 days from the date of the first notice of appeal."

We reach the conclusion that the appeal is properly and legally before us for our consideration, despite the mandatory statement in the Rule 73(g) as to the requirement of time within which the record must be filed, for the following reasons:

(a) Rule 73(g)'s mandatory requirement is alleviated in its rigidity by subsection (a) of the same rule which renders the failure to comply with subsection (g) ...


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