Fraser v. Doing

• Decision Date: 29 June 1942
• Docket Number: No. 7835.,7835.
• Citation: 130 F.2d 617
• Parties: FRASER v. DOING.
• Court: U.S. Court of Appeals — District of Columbia Circuit

130 F.2d 617 (1942)

FRASER v. DOING.

No. 7835.

United States Court of Appeals for the District of Columbia.

Decided June 29, 1942.

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Mr. George C. Gertman, of Washington, D. C., submitted the case for appellant.

Mr. Walter R. Schoenberg, with whom Mr. Byron G. Carson, both of Washington, D. C., was on the brief, submitted the case for appellee.

Before GRONER, Chief Justice, and MILLER and VINSON, Associate Justices.

MILLER, Associate Justice.

Appellant is a nonresident of the District of Columbia. On June 3, 1938, appellee brought suit against him, in the District Court of the United States for the District of Columbia (Equity No. 67317) to remove a cloud upon title to real estate situated in the District of Columbia. On the same day, original process was issued against appellant and on June 9, 1938, service was made upon him in Florida by a Deputy United States Marshal. This process required an appearance to be made on or before twenty days after service. It specified that in event of failure to appear judgment would be taken pro confesso. Appellant failed to appear and on July 1, 1938, a decree pro confesso was entered against him. Thereafter, appellant filed a motion, supported by his affidavit, to vacate the decree pro confesso; this was overruled on October 5, 1938; and on November 1, 1938, a final decree was entered against appellant in Equity No. 67317, perpetuating the pro confesso decree, removing the cloud and taxing costs against him. No appeal was taken from this decree or from any other action of the court in that case. On November 7, 1938, appellant initiated a new action in the District Court (Civil Action No. 607) by filing, as plaintiff, a pleading entitled: "Original Complaint in the Nature of a Bill of Review Impeaching Decrees Entered in Equity Cause 67317 on July 1, 1938 and November 1, 1938." In this new action appellee was named as defendant. In her answer to this complaint, she alleged that appellant, following service of summons in Equity Cause No. 67317 "did respond to said summons, and entered a general appearance on July 7 and July 25 and July 26, 1938 in said equity cause to set aside said default." So far as appears from the record on this appeal, appellant has never denied the truth of this allegation. On February 6, 1940, appellee filed a motion for summary judgment in Civil Action No. 607. At the pretrial on February 8, 1940, counsel for both parties stipulated "that there are no issues of fact raised by the pleadings in this case except insofar as the records in said Equity Cause 67317 may indicate." When the action came on for hearing on the motion, no evidence was offered by either party; the case being submitted upon the complaint and answer. On January 13, 1941, Justice Morris entered judgment dismissing the complaint in Civil Action No. 607. This appeal followed.

Although the title of the complaint and the arguments on this appeal assume that the proceeding invoked the jurisdiction of equity to entertain bills of review, the first paragraph of the complaint states that jurisdiction is also conferred by Section 118, title 28 of the United States Code.¹ In so far as the complaint sought to reopen questions of fact, it necessarily invoked the procedure authorized by Section 118, title 28 of the United States Code, as in a bill of review for alleged errors apparent upon the face of the record, questions of fact cannot be drawn in issue.^1a Section 118, however, can be invoked only by a defendant not personally notified of the proceeding. Appellant, as defendant in Equity No. 67317, was personally notified and, therefore, is not entitled to invoke the remedy provided for in Section 118, title 28 of the United States Code.²

The new Federal Rules of Civil Procedure became effective on September 16, 1938.³ Consequently, they did not govern the procedure of Equity Cause No. 67317,⁴ but they did govern the procedure of the present case.⁵ The new rules contain no provision for bills of review or for a complaint in the nature of a bill of review. But we are advised that it was the intention of the rule-makers to preserve the remedy formerly available by bill of review.⁶ This intention appears in the following language of Rule 60(b): "This rule does not limit the power of a court (1) to entertain an action to relieve a party from a judgment, order, or proceeding, * * *."

Appellant's use of a bill of review as a remedy in the present case was wrong, in the first place, because it was premature. The final decree in Equity No. 67317 was entered on November 1, 1938, and appellant's bill was filed on November 7, 1938. At that time the decree was still open to correction in the same proceeding by a motion for a new trial,⁷ the equivalent of the former petition for rehearing.⁸ While rehearing is available as a remedy there is no necessity for a bill of review;⁹ consequently, the time for filing a bill of review does not begin until the time for filing a petition for rehearing has passed.¹⁰

The Supreme Court has stated that: "Bills of review are on two grounds: first, error of law apparent on the face of the record without further examination of matters of fact; second, new facts discovered since the decree, which should materially affect the decree and probably induce a different result."¹¹ A third ground, also, has been recognized, namely, fraud in procuring the decree.¹² Appellant does not contend that there was fraud in the procuring of the decree or that any new matter of fact or evidence was discovered, after the entry of the decree, in Equity Cause No. 67317, which would probably induce a different result.

The only other issue which could have been presented to the District Court, in the present case, therefore, by bill of review or by complaint in the nature of a bill of review was whether there was error of law apparent upon the face of the record in Equity Cause No. 67317. Appellant has further defined that issue by his statement that: "The genuine issue in the case is whether the impeached decrees are valid, i. e., whether the Court which entered them possessed jurisdiction in personam over appellant."¹³

Assuming that this issue was properly presented by appellant's complaint, it then became the duty of the court to consider it, upon the whole record in Equity Cause No. 67317, as a question of law arising upon the pleadings, the proceedings and the decree in that case.¹⁴ The burden was upon appellant to show to the District Court the error which he claimed to be apparent upon the face of the record in Equity Cause No. 67317;¹⁵ and it was equally his burden to show to this court that the District Court wrongfully found that no such error was apparent thereon.¹⁶ The record which has been brought to us for this purpose is highly inadequate. The disputed record in Equity No. 67317 was not included in the present record on appeal, and, consequently, is not available to us. Under the circumstances every reasonable assumption must be indulged in favor of the District Court's judgment,¹⁷ and in support of its exercise of discretion.

The trial judge, in granting appellee's motion for summary judgment and in entering judgment dismissing the complaint, concluded as a matter of law that: "* * * the plaintiff, notwithstanding the decree pro confesso entered on July 1, 1938 and the order of October 5, 1938 overruling the motion to vacate the decree pro confesso, had ample opportunity to raise in that case and to be heard upon it, the jurisdictional questions which the complaint raises in this action, therefore the plaintiff is precluded from raising the same now by his present complaint. Accordingly a judgment will be entered dismissing the complaint upon these grounds." Appellant objects to this conclusion, and to the judgment, upon three grounds, the first of which is that a motion for summary judgment is directed to the pleadings and that if it appears from them that a genuine issue exists the court is powerless to award a defendant judgment summarily under Rule 56(c). There are several answers to this contention. In the first place, appellant has misstated Rule 56(c). It reads as follows: "The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Italics supplied. In the present case there was no issue of fact, material or otherwise.

In the second place, if the trial court's conclusion was correct, appellee was entitled to judgment as a matter of law. As (1) appellee's answer alleged that appellant had made a general appearance in Equity No. 67317; (2) nothing to the contrary was alleged, or proved in the present case; (3) appellant stipulated at the pre-trial that "there are no issues of fact raised by the pleadings in this case except insofar as the records in said Equity Cause 67317 may indicate * * *;" (4) the present case was submitted to the trial court upon the complaint and answer; (5) the record in Equity No. 67317 is not before us; (6) every reasonable presumption must be indulged in favor of the judgment of the trial court; we conclude that appellant did make a general appearance in Equity No. 67317 and subjected himself to the jurisdiction of the court for all purposes.¹⁸ This being true he cannot sustain his contention that the court lacked jurisdiction to enter its decrees, and appellee was entitled to judgment as a matter of law.

In the third place, we see no reason to conclude that Rule 60(b), or Rule 56(c), or any other of the new Federal Rules of Civil Procedure was intended to expand the issues which may properly be urged in a bill of review, or in a complaint in the nature of a bill of review. The remedy was one which had been carefully worked out, over the years, to accomplish...