303 U.S. 36
Argued Jan. 6, 7, 1938.
Decided Jan. 31, 1938.
[303 U.S. 36, 37] Messrs. Alger A. Williams, Charles H. Kendall, and George Clinton, Jr ., all of Buffalo, N.Y., for petitioner.
Mr. Julius C. Martin, of Washington, D.C., for respondent.
Mr. Justice McREYNOLDS delivered the opinion of the Court.
Certiorari was granted because of conflicting views in the law courts, 302 U.S. 668 , 58 S.Ct. 31, 82 L.Ed. --.
Claiming to be permanently and totally disabled, petitioner instituted an action in the United States District Court, Western District of New York, to recover under a War Risk Insurance Policy. 10 F.Supp. 412. He was honorably discharged in 1919
Before the cause came on for trial respondents moved for dismissal because the action was not brought within [303 U.S. 36, 38] the time prescribed by Sec. 19, World War Veterans' Act 1924, as amended by Act July 3, 1930, 46 Stat. 992, 38 U.S.C.A. 445, copied in the margin. 1 This motion was overruled. Whether properly so, is the matter for our consideration. [303 U.S. 36, 39] By concession it was necessary to bring suit not later than July 1, 1933.
March 16, 1933, a praecipe for issuance of summons was filed with the clerk of the District Court; on the same day copy of the summons was served upon the United States attorney in Buffalo and another mailed to the Attorney General at Washington; no copy of the complaint was served upon the United States attorney until July 26, 1933; the original complaint was not filed with the clerk until April 23, 1936.
February 15, 1934, the United States attorney filed an answer without questioning the timeliness of the suit; a year later he moved to dismiss. The cause was heard in April, 1936; judgment went for the assured July 29, 1936.
In following the above-described procedure petitioner's counsel acted upon information given by the assistant United States attorney, who declared that service of summons would suffice to give jurisdiction and toll the statute; that complaint might be served thereafter.
Two points are presented. Did procuring the summons, serving one copy on the United States attorney and sending another to the Attorney General, begin the [303 U.S. 36, 40] suit within the requirement of the statute? If not, do the circumstances establish waiver of the defense that suit was out of time.
Section 19, Act of 1924, permits an action on a war risk policy to be brought in the United States District Court for the district in which the claimant resides. Also directs, 'The procedure in such suits shall be the same as that provided in sections 5 and 6,' Sections 762 and 763, title 28, U.S.C.A. of the Tucker Act of March 3, 1887, 'and Section 10 thereof, Section 765, title 28, U.S.C.A., so far as applicable.' Section 5 of the Tucker Act provides that the plaintiff 'shall file a petition' with the clerk of the court containing a succinct statement of the facts upon which the claim is based; section 6 that he shall cause one copy of this to be served upon the district attorney and mail another to the Attorney General. These requirements were not complied with prior to July 1, 1933.
The Circuit Court of Appeals held the suit was not brought in time to toll the statute, and with this conclusion we agree. The opinion there adequately refers to the sundry opinions which have considered the subject, discloses the claims of the parties, and reasons for the judgment.
Affirmation here, upon authority of United States v. Larkin, 208 U.S. 333 , 28 S.Ct. 417, of the District Court's judgment in United States v. Mill Creek, etc., and two similar causes (Nos. 103, 104, 105, Oct. Term 1919), 251 U.S. 539 , 40 S.Ct. 118, cannot properly be regarded as authority for a view contrary to the one we now approve. Those causes came up under a statute which permitted direct appeals from District Courts solely upon questions of jurisdiction. We determined only that the District Court had power to hear and rule upon the questions presented to it-among them whether the suits were brought in time. The merits of the controversy-whether in reality the suits were in time-we did not consider. Examination of the opin- [303 U.S. 36, 41] ion in Larkin's Case and the statute then in force will make this clear enough.
Suits against the United States can be maintained only by permission, in the manner prescribed and subject to the restrictions imposed. Reid v. United States, 211 U.S. 529, 538 , 29 S.Ct. 171. The Conformity Act, 28 U.S.C.A. 724, cannot be relied upon to change any of these.
The district attorney had no power to waive conditions or limitations imposed by statute in respect of suits against the United States. Finn v. United States, 123 U.S. 227, 233 , 8 S.Ct. 82. Judgment against them is not permissible if first sought after expiration of the time allowed.
Mr. Justice CARDOZO took no part in the consideration and decision of this case.
[ Footnote 1 ] Act of July 3, 1930, c. 849, 46 Stat. 992,
Tucker Act, March 3, 1887.
Section 5, U.S.C.A. title 28, 762.
Section 6, U.S.C.A. title 28, 763.