Opinion
No. 11761.
November 15, 1946.
Appeal from the District Court of the United States for the Southern District of Texas; Thomas M. Kennerly, Judge.
Action under the Tucker Act, 28 U.S.C.A. § 41(20), by Nowlin Randolph against United States of America, to recover disability retirement pay claimed to be due plaintiff as a Lieutenant Colonel in the army under 10 U.S.C.A. § 456. From a judgment dismissing the action for want of jurisdiction, 69 F. Supp. 156, the plaintiff appeals.
Affirmed.
Paul Strong, of Houston, Tex., for appellant.
Searcy L. Johnson, Sp. Asst. to Atty. Gen., and Brian S. Odem, U.S. Atty., and Newton M. Crain, Jr., Asst. U.S. Atty., both of Houston, Tex., for appellee.
Before HUTCHESON, HOLMES, and McCORD, Circuit Judges.
Appellant suing under the Tucker Act, 28 U.S.C.A. § 41(20), to recover disability retirement pay, claimed to be due him as a Lieutenant Colonel in the Army under Section 456, Title 10 U.S.C.A., was met by a motion to dismiss for want of jurisdiction.
The District Judge sustained the motion, and, on the authority of United States v. Beaman, 5 Cir., 61 F.2d 493, Morgan v. United States, 5 Cir., 115 F.2d 426, and Smith v. United States, 4 Cir., 57 F.2d 998, dismissed the cause.
Appellant is here claiming that Dismuke v. United States, 297 U.S. 167, 56 S.Ct. 400, 80 L.Ed. 561, is to the contrary. We do not think so. The judgment is affirmed.