(dissenting).
I am unable to agree, and the question is of such general importance that I will state my views. It seems to me that the filing of the petition in the District Court stopped the running of the statute of limitations if followed up by service of process within a reasonable time. “A suit is commenced by the filing of the petition or bill with the honest intention to prosecute the suit diligently provided there is no detrimental or unreasonable delay in the subsequent issue or service of the process.” Mound City Co. v. Castleman, 8 Cir., 187 F. 921, 925. This is the settled rule in England, in the federal courts in this country, and in all the state courts except a few which have peculiar codes.
The present question is whether this general rule, which of course was well understood by Congress, was intended to be changed by the statutes authorizing suits against the United States. Rev.Stat. § 1069, which was originally passed in 1863, was incorporated unchanged into the Judicial Code § 156, 28 U.S.C.A. § 262. It reads: “Every claim against the United States cognizable by the Court of Claims, shall be forever barred unless the petition setting forth a statement thereof is filed in the court, * * * within six years after the claim first accrues.” In the act conferring jurisdiction on the District Courts over such claims the language is: “No suit against the Government of the United States shall be allowed under this paragraph unless the same shall have been brought within six years after the right accrued.”' 28 U.S.C.A. §41(20).
*725In the Court of Claims filing the petition has always constituted and still constitutes bringing suit; there is, I understand, no disagreement on this point. So the government’s contention resolves itself into this, that a different rule of limitation applies in the District Courts from that which applies to the same cases when brought under the same statute in the Court of Claims, and that the rule which applies to these cases in the District Courts is different from the rule which applies to all other cases in those courts. Very explicit language should be required to lead to such a result. The statutes relied on as having this effect are found in 28 U.S.C.A. §§ 761, 762, and 763. Section 761 provides: “The course of procedure for the district courts and the court of claims in cases under section 41, paragraph 20, [district courts] and section 250 [court of claims] of this title, in so far as applicable and not inconsistent with sections 762 to 765, * * * shall be in accordance with the established rules of said respective courts, and of such additions and modifications thereof as said courts may adopt.” This section, it will be observed, explicitly refers to and adopts, with reference to claims against the government, the regular procedure “not inconsistent with sections 762 to 765.” We are not here concerned with sections 764 and 765.
Section 762 reads: “The plaintiff in any ■suit brought under the provisions of section •41, paragraph 20, of this title shall. file a petition, duly verified with the clerk of the respective court having jurisdiction of the ■ case, and in the district where the plaintiff resides. Such petition shall set forth the full name and residence of the plaintiff, the nature of his claim, and a succinct statement of the facts upon which the claim is based, the money or any other thing claimed, or the damages sought to be recovered and praying the court for a judgment or decree upon the facts and law.” This is a clear and adequate provision for the bringing of suits against the United States, following the same procedure which began as far back as the Act of 1863.
Section 763 reads as follows:
“The plaintiff shall cause a copy of his petition filed under section 762 of this title, to be served upon the district attorney of the United States in the district wherein suit is brought, and shall mail a copy of the same, by registered letter, to the Attorney General of the United States, and shall thereupon cause to be filed with the clerk of the court wherein suit is instituted an affidavit of such service and the mailing of such letter. It shall be the duty of the district attorney upon whom service of petition is made as aforesaid to appear and defend the interests of the Government in the suit, and within- sixty days after the service of petition upon him, unless the time should be extended by order of the court made in the case to file a plea, answer, or demurrer on the part of the Government, and to file a notice of any counterclaim, set-off, claim for damages, or other demand or defense whatsoever of the Government in the premises. Should the district attorney neglect or refuse to file the plea, answer, demurrer, or defense, as required, the plaintiff may proceed with the case under such rules as the court may adopt in the premises; but the plaintiff shall not have judgment or decree for his claim, or any part thereof, unless he shall establish the same by proof satisfactory to the court.”
It will be observed that this section applies indifferently to District Courts and to the Court of Claims and that it contains not one word making compliance with any of these directions a condition of beginning action. The condition on which my brethren rely in holding that suits in the District Courts are not begun until process is served is found only “by implication.” It seems to me unsound to read into a statute such an important provision in that way and to hold that this modification applies to one of two cognate courts but not to the other. The provisions of section 763 do not seem to me to be conditions at all under which the United States consents to be sued. Those conditions in this class of cases are found in the revenue laws, that there shall be a claim of overpayment, a claim for refund filed and disallowed, etc. The provisions referred to relate to service of process, etc. — a distinctly different thing, having no relation to jurisdiction unless explicitly given such a relation. I believe it to be not uncommon for statutes authorizing suits against a government, state-or federal, to contain provisions of this character stating on which official service should be made. It is settled that “brought” in section 762 means filing a petition if the suit is brought in the Court of Claims. I do not think it means something else if the suit is brought in the District Court which has concurrent jurisdiction under the same statutes.
*726A number of the cases cited in the government’s brief and relied on by the District Judge have nothing to do with tolling the statutes of limitation; they do not seem to me in point.