312 F.2d 337 (D.C. Cir. 1962), 16451, Austin v. Smith

Docket Nº:16451.
Citation:312 F.2d 337
Party Name:Clarence AUSTIN, Appellant, v. Otis SMITH et al., Appellees.
Case Date:November 21, 1962
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 337

312 F.2d 337 (D.C. Cir. 1962)

Clarence AUSTIN, Appellant,


Otis SMITH et al., Appellees.

No. 16451.

United States Court of Appeals, District of Columbia Circuit.

November 21, 1962

Argued Dec. 22, 1961.

Page 338

Mrs. Maurine Howard Abernathy, Washington D.C., for appellant.

Mr. John F. Costello, Washington, D.C., with whom Mr. John F. Burke, Washington, D.C., was on the brief, for appellees.

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Before BAZELON, Chief Judge, and EDGERTON and WILBUR K. MILLER, Circuit Judges.

WILBUR K. MILLER, Circuit Judge.

Otis Smith and his wife, Hattie Lee, sued Ruth Bush and her father, Henry Austin, February 21, 1956, to recover damages for injuries sustained by Otis when he was struck by a motorcycle ridden by Ruth Bush. They alleged she was negligently operating the motorcycle and that her father, who owned it, had negligently allowed his daughter to use it when she was unskilled, unlicensed and untrained. The defendants did not answer and default was entered May 12, 1956. Thereafter, on June 14, 1956, an inquisition by a jury as to damages resulted in a verdict of $7,000 in favor of Otis Smith.

On November 9, 1956, the Clerk of the District Court issued on a printed form the following order of attachment addressed to the United States Marshal:

'YOU ARE HEREBY COMMANDED to attach the goods, chattels, and credits of the defendant (Henry Austin), if to be found in this District, of value sufficient to satisfy the plaintiff('s) judgment against the defendant in this Court in the above-entitled cause, on the 14th day of June 1956, for $7,000 with interest from June 148 1956 for money payable to the plaintiff by the defendant, and $45.00 for costs; and the same so attached, safely keep and have before said Court, on or before the tenth day occurring after the execution of this writ, that the same may be condemned unless sufficient cause be shown to the contrary; and, if said goods, chattels, or credits be attached in the hands or possession of any person or persons other than the defendant, notify such person or persons of such seizure, and warn him or them to appear before said Court, within the time aforesaid, to show cause why the same should not be condemned and execution thereof had according to law. And have then there this writ, so endorsed as to show when and how you have executed it.'

The following notice of garnishment appears below the order of attachment:

'9 November, 1956

'To Clarence Austin, 811 St. Catherine Street, N.E., Garnishee.

'YOU ARE HEREBY NOTIFIED that any property or credits of Henry Austin in your hands are seized by virtue of the foregoing writ of

'By (Illegible), Deputy warned to appear in said

Court, on or before the tenth day after service hereof, and show cause, if any there be, why the property or credits so attached should not be condemned and execution thereof had.

'Carlton G. Beall, U.S. Marshal in and for the District of Columbia 'By (Illegible), Deputy U.S. Marshal.'

The deputy marshal's return on a separate sheet is as follows:

'I hereby certify and return that I served the annexed Garnishment on the therein-named Clarence Austin by handing to and leaving a true and correct copy thereof with him personally at 800 Block of St. Catherine St. N.E. in the said District at 2:30 p.m. on the 9th day of November, 1956.'

Clarence Austin did not answer or appear, and on December 3, 1956, the District Court entered the following judgment against him:

'On motion of the plaintiff Otis Smith, and it appearing to the Court that on November 9, 1956, the United States Marshal attached credits of the defendant Henry Austin in the hands of Clarence Austin, garnishee herein, and thereupon served on said garnishee a copy of the interrogatories filed herein, and it further appearing that no answer by said garnishee to said interrogatories

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has been filed herein, and that the time for such answer has expired, and nothing appearing to the contrary, it is by the Court this 3rd day of December, 1956

'ORDERED, That judgment of condemnation be and the same is hereby entered against said garnishee, Clarence Austin, in the full sum of $7,041.80 with interest thereon from 1956, and costs, towards the satisfaction of plaintiff's recovery herein.'

On February 5, 1957, Otis Smith sued Clarence Austin on the default judgment for $7,000 and costs and prayed that certain real estate described in his complaint, which he alleged was owned by Clarence Austin, be ordered sold to satisfy the judgment. Clarence Austin did not appear or answer and on August 20, 1957, a default was entered against him. Six days later a judgment was entered pursuant to the default ordering the sale of real estate described in the complaint. It appears, however, that it has not yet been sold.

The record discloses no further activity by any party until March 13, 1961. On that date-- more than four years after the default judgment for $7,000 had been entered against him-- Clarence Austin moved to vacate it. He alleged he 'was not a real party in interest but an innocent third party, who was erroneously named as Garnishee'; that he was not served with process and 'had no knowledge of said judgment until he sold some property in 1960, the proceeds from which have since been withheld.'

Three days later-- March 16, 1961,-- he filed a motion to set aside the default judgment ordering sale of the realty, because of the invalidity of the judgment for $7,000 on which it was based. His own affidavit in support of the motion contained statements indicating that he owed Henry Austin nothing.

The motions to vacate the two default judgments were denied and this appeal followed. The principal question is whether the District Court correctly denied the motion to vacate the basic judgment for $7,000; for, if that judgment is void, the second judgment which was based upon it is also void, and should be vacated.

Clarence Austin's main contention is that no process was served on him. But the deputy marshal's return shows the garnishment was served on November 9...

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