United States v. Van Pelt

Full title: UNITED STATES v. VAN PELT

Court: Circuit Court of Appeals, Sixth Circuit

Date published: May 1, 1944

142 F.2d 61 (6th Cir. 1944)

Opinion

No. 9743.

May 1, 1944.

Appeal from the District Court of the United States for the Southern District of Ohio; Robert R. Nevin, Judge.

Action by Willard F. Van Pelt against the United States of America to recover monthly disability payments on a government convertible life policy. From a judgment for plaintiff, defendant appeals, and plaintiff moves to dismiss the appeal.

Affirmed.

Calvin Crawford and Joseph M. LeMense, both of Cincinnati, Ohio, for appellant.

Marshall, Harlan Marshall, of Dayton, Ohio, for appellee.

Before HICKS, SIMONS, and McALLISTER, Circuit Judges.

McALLISTER, Circuit Judge.

The only question in this case is one of law, which was heretofore submitted to this court and determined adversely to appellant a year ago, in Van Pelt v. United States, 6 Cir., 134 F.2d 735. That decision reversed the district court and ordered a new trial. On remand, the parties amended their pleadings, eliminating all factual issues, and leaving for determination by the district court, the issue which had been determined adversely to appellant herein in the prior opinion of this court. The district court, in compliance with such opinion, on motion for judgment on the pleadings, entered judgment for appellee herein.

On appeal, the Government asks the court to decide the same issue of law, contrary to the determination in its former opinion. In effect, this amounts to a rehearing, coming on to be heard a year after petition for rehearing might have been filed. Notwithstanding the fact that the court is of the opinion that promptness of disposition would have been better served by petition for rehearing, or petition for certiorari to the Supreme Court, it has been determined that, instead of disposing of the appeal on motion to dismiss filed by appellee, the issue on appeal be again considered.

After hearing the arguments, and having examined the briefs of counsel, upon due consideration, it is hereby ordered, adjudged, and decreed that the judgment of the district court be and is hereby affirmed, on the authority of Van Pelt v. United States, 6 Cir., 134 F.2d 735.