Bass v. Hoagland

• Decision Date: 28 February 1949
• Docket Number: No. 12394.,12394.
• Parties: BASS v. HOAGLAND.
• Court: U.S. Court of Appeals — Fifth Circuit

172 F.2d 205 (1949)

BASS v. HOAGLAND.

No. 12394.

United States Court of Appeals Fifth Circuit.

January 18, 1949.

Rehearing Denied February 28, 1949.

Dwight Whitwell and Roland Boyd, both of McKinney, Tex., for appellant.

Carlisle Blalock, of Dallas, Tex., for appellee.

Before HUTCHESON, SIBLEY, and McCORD, Circuit Judges.

SIBLEY, Circuit Judge.

The judgment for $9,833.49 from which appeal is taken was entered on a motion for judgment on the pleadings under Rule 12(c) of Federal Rules of Civil Procedure, 28 U.S.C.A. The complaint alleges simply that the plaintiff Hoagland is a citizen of Kansas and the defendant Bass a citizen of Texas and the amount involved is more than $3,000; that on Dec. 13, 1943, judgment was rendered in the United States District Court for the District of Kansas against defendant and another for $7,810.70 and costs, no part of which has been paid, and on which $9,177.53 principal and interest is due, for which judgment is prayed. The answer, after asserting that no claim is stated in the complaint on which relief can be granted, makes six brief separate defenses, not expressly admitting or denying anything alleged in the complaint. The first of these defenses is that the judgment sued on was one by default on a claim not for a sum certain nor which could by computation be made certain, and no notice was served on defendant three days prior to the application for judgment as required by Rule 55 of Civil Procedure. The second is that the plaintiff perpetrated a fraud on the court in securing a judgment for $7,810.70 as a result of an accident not the fault of the defendant but of the plaintiff, in which the plaintiff suffered injuries which were not severe. The third is that the damages are in view of the injury exorbitant and unconscionable. The fourth is that defendant had good defense which he was prevented from making by fraudulent acts of plaintiff in taking a default judgment without prior notice to defendant when plaintiff knew defendant was not represented by counsel and defendant did not know it; and by not giving defendant notice that the judgment had been taken until more than a year had elapsed, when it was too late for defendant to take steps to vacate and set aside the judgment under Rule 60(b). The fifth is that defendant had no actual knowledge of the default judgment, which was not filed till April 5, 1944, till he was served with process in the present suit on Nov. 17, 1946. The last defense is more lengthy, and alleges that the judgment is void as taking property without due process of law contrary to the Fifth Amendment of the Constitution, by reason of the failure to give notice under Rule 55(b); because rendered without a trial by jury after a jury had been duly demanded by plaintiff and defendant had not consented to a withdrawal of the demand under Rule 38(d); because no notice was given after judgment as required by Rule 77(d), preventing defendant from taking an appeal or moving to set the judgment aside within the time allowed by law; and because the judgment was taken without any evidence at all to establish liability of defendant, or to prove the nature and extent of the damages suffered, if any; the defendant having appeared in the suit and filed an answer denying generally any liability to plaintiff and having alleged contributory negligence on the part of the plaintiff and the driver of the car in which plaintiff was a passenger, so that the rendering of judgment without evidence was a denial of due process and beyond the power of the court.

Such being the pleadings, the plaintiff was allowed to introduce a certified copy of the judgment, which we will regard as making it an exhibit to the complaint. It states that the case came on for trial on Dec. 13, 1943, the plaintiff being present by named attorneys, and the defendants being present neither in person nor by attorney, "but being in default by reason of the withdrawal of Cowan, McCorkle, Kahors and Nelson and W. A. Kahors, which withdrawal had been previously made in open court by said attorneys after notice to defendants"; that an affidavit had been made that the defendants were not in military service; that "thereupon the matter proceeded to trial and evidence having been introduced and argument of counsel having been made, the court finds that the plaintiff is entitled to judgment in the amount prayed for", whereupon recovery was adjudged in the sum of $7,810.70. Besides being signed by the judge, it is marked "Approved", signed by plaintiff's attorneys. It was not filed by the Clerk till April 5, 1944.

On a motion for judgment on the pleadings the old rule obtains that the fact allegations of the answer are to be taken as true, but those of the complaint are taken as true only where and to the extent that they do not conflict with those of the answer. In this case the motion for judgment itself contains an express admission, for the purposes of the motion only, that the grounds of defense in the answer are true, but asserts they are only a collateral attack upon a judgment regular upon its face. The facts thus presented make this picture: Bass, a citizen of Texas, was sued in Kansas (with another) by a citizen of Kansas for a personal injury inflicted in an automobile accident for damages alleged to be $7,810.70. The mode of service does not appear but is immaterial because Bass appeared by counsel and filed an answer to the merits. The plaintiff filed a demand for jury trial and Bass has never consented to its withdrawal. For an undisclosed reason defendants' counsel "withdrew", but did not withdraw the appearance and answer. The judgment says notice of the withdrawal was given the defendants, but Bass alleged he did not know of it. The case came on for trial. Neither plaintiff nor defendants were present; only plaintiff's counsel. The judge considered the case in default by reason of the previous withdrawal of defendants' counsel; but heard evidence and argument, as the judgment recites, and gave judgment for the exact amount sued for, plaintiff's counsel signing an approval of the judgment. The allegation, admitted for the present to be true, is that no evidence whatever was in fact heard. The judgment was not filed till April 5, 1944, more than three months after its purported date. No notice was given three days before asking a judgment by default as required by Rule 55(b) (2); but notice was fraudulently withheld and Bass did not know there had been a trial or judgment till served in the present suit Nov. 19, 1946. This seems to present a case of injustice, and at least serious irregularity in procedure. Is there an available remedy?

The plaintiff argues that the remedy was by setting aside the default judgment under Rules 55(c) and 60(b) on motion within six months, or by "an action to relieve a party from a judgment" for which Rule 60(b) fixes no limit of time. It may be that under Rule 6(b) an enlargement of the time of six months for a motion might be obtained. No relief having been sought in the court rendering the judgment, it is asserted that an attack cannot be collaterally made in this suit upon the judgment. Whether there was or still is available such a remedy is not a question before us, but would be for the Kansas court on an application to it. Our question is whether the judgment is enforceable in the Texas court on these facts.

Both courts involved are federal courts, proceeding under federal law. The due faith and credit clause of the Constitution, Art. IV, Section 1, is therefore not directly applicable. The validity of the judgment of the Kansas District court depends on the Constitution and laws of the United States alone, the procedural law of neither Kansas nor Texas being controlling. The federal Rules of Civil Procedure have the force and effect of statutes, but no more. It is well settled law in the federal courts that a judgment of a court having jurisdiction of the parties and of the subject matter is conclusive of the matter it decides and cannot be collaterally attacked for error in procedure or as to the merits. It is also well settled law that its express recitals import verity; and where the judgment is silent, if the court rendering it is one of record and of general jurisdiction, the federal district court being such a court, all presumptions are in favor of its regularity. It is equally well settled that such presumptions may be overcome and that recitals as to things proper to be shown in the record on which the judgment rests may be overborne by reference to that record. It is also settled that a suit on a judgment, being a mode of enforcing it, does not open it to direct attack, and that any attack is collateral. Since the Kansas court had jurisdiction of the person of Bass by his appearance and pleading to the merits, and had jurisdiction to render a money judgment between citizens of different States for a personal injury, most of the several attacks collaterally made in the answer cannot avail because they assert mere error in the exercise of jurisdiction rather than usurpation of power.

But the last defense requires careful consideration. It asserts that the jury trial of the fact issues in the case which is guaranteed by the Seventh Amendment of the Constitution, and was required by the original Judiciary Act of 1799 before the Amendment was adopted, the requirement being carried in 28 U.S.C.A. § 770,^* was denied though demanded; and that default was recited in the judgment as its basis when there was no default, but an answer to the merits; and that if there was default the notice required by Rule of Civil Procedure 55(b) (2) before proceeding to judgment by default was not given by plaintiff, nor the jury trial had as to the amount of such unliquidated damages as required by the same Rule; and no evidence at all was heard; and that it all amounts to a denial of due process of law under the Fifth Amendment. We believe that a...