180 F.2d 766 (D.C. Cir. 1950), 10326, Dewey v. Clark

Docket Nº:10326.
Citation:180 F.2d 766
Party Name:DEWEY v. CLARK.
Case Date:February 06, 1950
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 766

180 F.2d 766 (D.C. Cir. 1950)

DEWEY

v.

CLARK.

No. 10326.

United States Court of Appeals, District of Columbia Circuit.

February 6, 1950

Argued Dec. 19, 1949.

Page 767

Mr. J. Grahame Walker, Washington, D.C., with whom Messrs. E. Hilton Jackson and John W. Jackson, Washington, D.C., were on the brief, for appellant.

Mr. Herman Miller, Washington, D.C., for appellee.

Before PRETTYMAN, FAHY, and BAZELON, Circuit Judges.

FAHY, Circuit Judge.

This is an appeal allowed pursuant to 11 D.C.Code § 773 (1940) from a decision of the Municipal Court of Appeals for the District of Columbia. The court below affirmed a summary judgment of the Landlord and Tenant Branch of the Municipal Court which awarded possession of an apartment to the appellee, the plaintiff. She claimed to be entitled to possession as owner and landlord, 'under section 5 of the District of Columbia Emergency Rent Act,' 1 for her immediate and personal use and occupancy as here residence.' The appellant, who was the defendant, urges principally two grounds for reversal: first, jurisdiction to proceed was lacking because the service of summons was invalid; and, second, there was a genuine issue of a material fact as to the good faith desire of appellee for possession for her use and occupancy as her residence, which precluded summary judgment and entitled appellant to a trial.

1. Appearing specially in the Municipal Court appellant moved to quash the service as not in conformity with the requirements of the applicable statute. A supporting affidavit was filed with the motion. The facts in regard to service, found by the court and to the extent here stated not in dispute, are as follows: appellant was and had been for some years in residence in the apartment; the deputy marshal received copies of the summons for service on Friday, December 17, 1948; he endeavored to make service on the following day, the 18th, by first knocking on the door of the apartment; he obtained no response, left the building and returned again on Monday, December 20, 1948; he repeated the procedure of knocking on the door; there was still no response; he returned for the third time and the third time knocked on the door; there was still no response, and he then securely fastened the two copies of the summons flat against the door. That afternoon, December 20, 1948, the appellant found the copies so fastened and received the same into his possession. The return

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made by the deputy marshal was that he had posted a copy of the summons on the premises, 'the defendant not to be found and no person above the age of sixteen years to be found in possession of or residing on said premises.'

We are of the opinion that the service was good. The provisions of the D.C. Code governing service in such a case read as follows:

'Forcible entry and detainer- Service of summons.

'The summons shall be served seven days, exclusive of Sundays and legal holidays, before the day fixed for the trial of the action. If the defendant has left the District of Columbia or can not be found, said summons may be served by delivering a copy thereof to the tenant, or by leaving the same with some person above the age of sixteen years residing on or in possession of the premises sought to be recovered, and if no one be in actual possession of said premises, or residing thereon, by posting a copy of said summons on the premises where it may be conveniently read.' 11 D.C.Code § 736 (1940).

This statute is unclear where, as in the present case, there is a tenant or other person in possession and residing on the premises in a general sense but such tenant or person cannot be found. We believe the deputy marshall properly construed his statutory authority in such a situation. He posted a copy on the premises where it could be conveniently read, since, as he stated in his return, the defendant was not to be found, and no person above the age of sixteen years was to be found in possession of or residing on the premises. He thus resolved the ambiguity by saying in effect that where the defendant was not to be found and where no one above 'sixteen years' could be said to be in possession, that is, in 'actual possession' for purposes of service because such a person could not be found, service by posting was permissible. This in the end does no more than permit service by posting not only where the defendant himself cannot be found and no one above sixteen is in possession or residence, but also where one who in a legal sense may be in possession or residence also cannot be found. The 'cannot be found' factor we believe permeates the statute to the extent of permitting such substitution for personal service on the tenant or person over sixteen residing on or in possession of the premises when neither of these latter can be found, as well as permitting in appropriate circumstances substitution for personal service on the defendant. The provision 'if no one be in actual possession' or residing on the premises then service may be had by posting, grew no doubt from the assumption by Congress that ordinarily one in possession or residence could be found and served in person, particularly in an action for possession. 2 But when such assumption proves in a particular case to be inapplicable because such person too cannot be found the conditions which authorize service by posting arise. The statute can be given a reasonable and consistent construction throughout by reading it to provide that service shall be (1) on the defendant in person if he has not left the District of Columbia and can be found, (2) if he has left the District or cannot be found, be delivering a copy to the tenant or by leaving the same with some person over sixteen in possession of or residing on the premises, if there is a tenant or such person and either can be found; (3) if the defendant has left the District or cannot be found no one above the age of sixteen can be found in actual possession or residing on the premises then no one is in 'actual possession' or 'residing thereon' and posting

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is proper. 3See Etelson v. Andre, decided by the court below, D.C. Mun. App. 1948, 61 A.2d 806, 808.

This leaves for consideration the meaning of the statutory phrase 'can not be found' and whether its requirements were met by the deputy marshal. Posting is to be substituted only if the defendant has left the District of Columbia or cannot be found and there is no tenant or person over the age of sixteen years in possession or residing on the premises who can be found. The absence of these conditions must be adequately ascertained as a condition to the validity of service by posting. The process server must be diligent and conscientious. Kennedy v. Brent, 1810, 6 Cranch 187; 3 L.Ed. 194; Guiterman v. Sharvey, 1891, 48 Minn. 183, 48 N.W. 780, 24 Am.St.Rep. 218; Commonwealth v. Gill, 1853, 14 B.Mon. 20, 53 Ky. 20. The facts of this case, already set forth, meet these requirements. We accordingly hold that the courts below correctly sustained the service and that the motion to quash was properly overruled.

2. The second contention of appellant is that a genuine issue of a material fact is presented, which, in view of his request for a jury trial, precluded summary judgment. We agree with this contention. 11 D.C.Code § 715 (1940) provides, among other things, that 'in all actions for the recovery of possessions of real property, either party may demand a trial by jury.' Such demand was made. Rule 51 of the Rules of the Municipal Court of the District of Columbia, which for present purposes is like Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., provides that a party seeking to recover upon a claim, at any time after the pleading in answer has been served, may move with or without supporting affidavits for a summary judgment and that such judgment 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.' In the present case there are pleadings, depositions and affidavits. We look to them to ascertain if there is a genuine issue as to any material fact. Appellee alleged that as owner and landlord of said apartment she desired the premises 'in good faith for her immediate and personal use and occupancy as her residence.' This was a material allegation under section 5 of the District of Columbia Emergency Rent Act, supra. Appellant answered, 'plaintiff does not desire possession of said premises for her personal use and occupancy in good faith, as her residence. On the contrary, plaintiff recently purchased the apartment known as 2500 Massachusetts Avenue, N.W., in the District of Columbia, as a speculation, and plaintiff proposed to convert said building into a cooperative apartment building and has offered and is offering the premises involved herein for sale for the immediate and personal use and occupancy of a purchaser.' Appellee filed thereafter an affidavit giving details in support of her desire in good faith for possession for personal use as her residence, her intention as to the use of the premises, her primary motive for the immediate and personal use thereof for herself and family; she stated reasons which made her requirement of possession more imperative than theretofore, including sale and delivery of premises previously owned by her, and made detailed statements as to the selection of the particular apartment, No. 6, in good faith, and as to conduct on her part never inconsistent with her desire for possession as stated. The affidavit further averred that she had discussed the conversion of the building on a cooperative basis...

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