Austin v. Smith

• Decision Date: 21 November 1962
• Docket Number: No. 16451.,16451.
• Citation: 312 F.2d 337
• Parties: Clarence AUSTIN, Appellant, v. Otis SMITH et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

312 F.2d 337 (1962)

Clarence AUSTIN, Appellant, v. Otis SMITH et al., Appellees.

No. 16451.

United States Court of Appeals District of Columbia Circuit.

Argued December 22, 1961.

Decided November 21, 1962.

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.

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 14, 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 attachment, and you are hereby 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 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 sic, 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, 1956. We have no doubt that it was served on Clarence as the officer's return showed, and that the District Court was correct in so deciding. But that does not end the matter. It should be ascertained whether the default judgment was in all respects authorized. That task requires the construction of the following portion of § 15-312, D.C.Code (1961), upon which the District Court necessarily relied in entering the judgment:

"* * * If the garnishee shall have failed to answer the interrogatories served on him, or to appear and show cause why a judgment of condemnation should not be entered, such judgment shall be entered against him for the whole amount of the plaintiff\'s judgment and costs, and execution shall be had thereon."

This Code provision may be construed to authorize a judgment against a garnishee for the full amount of the plaintiff's claim against the principal defendant if the garnishee fails to answer the interrogatories, or to appear and show cause why a judgment of condemnation should not be entered, even though in fact the garnishee had no property or credits belonging to the principal defendant. So construed, the statute permits the imposition of a penalty or forfeiture upon a garnishee who owed the principal defendant nothing, simply because he neglects to answer and assert that fact. If this penalty or forfeiture is to be upheld, it must clearly appear that the default judgment was fully justified by the record.

It will be noted that the judgment against the garnishee, reproduced above, was based upon the recital therein that he had failed to answer interrogatories served on him. But the record contains no evidence of service of interrogatories. To be sure, there is in the District Court's file a printed form containing the following notice and interrogatories:

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

"You are required to answer the following interrogatories, under Penalties of Perjury within ten days after service hereof. And should you neglect or refuse so to do, judgment may be entered against you for an amount sufficient to pay the plaintiff\'s claim, with interest and costs of suit.

"Frank L. Dennis Attorney for Plaintiff." "INTERROGATORIES

"1st. Were you at the time of the service of the writ of attachment, served herewith, or have you been, between the time of such service and the filing of your answer to this interrogatory, indebted to the defendant? If so, how, and in what amount?

"2nd. Had you, at the time of the service of the writ of attachment, served herewith, or have you had, between the time of such service and the filing of your answer to this interrogatory, any goods, chattels, or credits of the defendant in your possession or charge? If so, what?"

The form is not marked as filed and is not identified in any way. It appears in the file next to the sheet containing the notices of attachment and garnishment, but there is nothing to show it was ever served on Clarence Austin. The deputy marshal's return only says the garnishment was served on him. Of course the interrogatories may have been attached to the notices of attachment and garnishment when the deputy marshal handed a copy of that sheet to Clarence Austin, but his return does not so indicate. As the words "the annexed Garnishment" in the deputy marshal's return may be understood to include, or not to include, the interrogatories, we think that in the circumstances of this case whatever doubt there is should be resolved in favor of the appellant. The mere possibility that the interrogatories may have been delivered to Clarence when the garnishment was served is not enough to support the default judgment imposing a drastic penalty or forfeiture of $7,000 for failing to answer them. When the validity of a default judgment depends upon a public officer's compliance with a statutory requirement and the record does not clearly show compliance, we think it must appear...