Hoth

207 F.2d 386 UNITED STATES, v. HOTH et al. No. 13294. United States Court of Appeals Ninth Circuit. Sept. 28, 1953. Warren E. Burger, Asst. Atty. Gen., Samuel D. Slade, John G. Laughlin, Attorneys, Department of Justice, Washington, D.C., J. Charles Dennis, U.S. Atty., Kenneth J. Selander, Asst. U.S. Atty., Seattle, Wash., for appellant. Raymond A. Reiser, Seattle, Wash., Donald M. Bushnell, Ferndale, Wash., for appellee. Before HEALY, BONE, and POPE, Circuit Judges. HEALY, Circuit Judge. 1 The United States instituted this action by filing a pleading entitled 'Complaint in the Nature of a Bill of Interpleader,' pursuant to Sec. 19 of the World War Veterans' Act of 1924 and Sec. 617 of the National Service Life Insurance Act of 1940, each as amended, 38 U.S.C.A. §§ 445 , 817. The individuals impleaded were alleged to have or claim an interest in a certain policy of National Service Life Insurance issued by the United States to one John M. Donley. Three of the named defendants (apparently brothers of the insured) made no appearance, and default was entered against them. Those appearing were appellees William E. Hoth, Rose E. Hoth, and Guy F. Whitman. 2 The complaint…

The United States instituted this action by filing a pleading entitled “Complaint in the Nature of a Bill of Inter-pleader,” pursuant to § 19 of the World War Veterans’ Act of 1924 and § 617 of the National Service Life Insurance Act of 1940, each as amended, 38 U.S.C.A. §§ 445 , 817. The individuals impleaded were alleged to have or claim an interest in a certain policy of National Service Life Insurance issued by the United States to one John M. Donley. Three of the named defendants (apparently brothers of the insured) made no appearance, and default was entered against them. Those appearing were appellees William E. Hoth, Rose E. Hoth, and Guy F. Whitman.

The complaint alleged that Donley, while in the service of the United States Army, was granted a $10,000 contract of National Service Life Insurance in which he designated his wife, Barbara M. Donley, as sole beneficiary; that Donley died in July 1943, while in the service, and that thereafter until the death of the beneficiary, in December of 1945, the latter was paid the insurance benefits periodically accruing. The complaint then alleges that while the United States stands ready to pay all further sums due under the policy…

I dissent.

The “Stipulation of Compromise and Settlement” upon which the judgment of the court below was based was filed with that court on December 11, 1951. It was drafted so as to include the United States as a party thereto. The United States Attorney, however, did not sign the document. On the same day the United States presented findings of fact and conclusions of law in accordance with the stipulation. These findings and conclusions were adopted by the court and judgment entered accordingly. In the findings it was noted that the United States was not a party to the stipulation.

On December 14, 1951, the United States filed with the court below a letter pertaining to this case, dated October 5, 1951, signed by an Assistant Attorney General of the United States and directed to the United States Attorney in Seattle. I quote this letter in pertinent part:

The letter contained other statements similar in effect. I cannot agree with my associates that in the circumstances of this case the “presentation” by an Assistant United States Attorney of the findings and conclusions of law adopted by the court precludes review of the questions here sought to be raised.

It should be…