Anderson v. United States

• Decision Date: 22 May 1950
• Docket Number: No. 4481.,4481.
• Citation: 182 F.2d 296
• Parties: ANDERSON v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

182 F.2d 296 (1950)

ANDERSON v. UNITED STATES.

No. 4481.

United States Court of Appeals First Circuit.

May 22, 1950.

M. Peter Anderson, pro se.

Alexander D. Varkas, Special Assistant to the United States Attorney, Boston, Mass. (George F. Garrity, United States Attorney, Boston, Mass., with him on the brief), for appellee.

Before MAGRUDER, Chief Judge, and CLARK¹ and WOODBURY, Circuit Judges.

CLARK, Circuit Judge.

This case appears to be one of those comedies of errors which occasionally — indeed, all too occasionally — find their way to an appellate court. It started innocently enough as an action by the government to recover the balance due upon an F.H.A. note executed by the defendant to a Boston bank and transferred by the latter to the plaintiff. To the complaint, the defendant, who has acted throughout as his own attorney, pleaded a general denial and also a counterclaim. Although the defendant appears to set great store by his counterclaim, it seems completely unintelligible and in itself no bar to the judgment below.² Plaintiff then submitted interrogatories which the defendant answered, albeit ambiguously and evasively. The United States Attorney next filed a motion for a summary judgment, which the court granted notwithstanding the defendant's objection in writing. All this is in due form and would be unassailable except for one simple, overlooked detail. There was no proof whatsoever of the claim. All that we have are two generalized statements of amount due, one in the complaint, the other in the motion for summary judgment, each over the signature of the Special Assistant to the United States Attorney. Of course even on a default, where the defendant is making no contest, more than this is required. Federal Rules of Civil Procedure, rule 55(b), 28 U.S.C.A. The case must therefore go back for repair of the omission.

The government urges that there are sufficient admissions in the interrogatories to support the judgment. The denials of the interrogatories do seem instinct with some sort of concession, just as was the case with the old negative pregnant, so much so as to justify a summary judgment had the plaintiff's case been supported by the detailed affidavit of some one with actual knowledge of the facts. F.R. 56(c); Engl v. Aetna Life Ins. Co., 2 Cir., 139 F.2d 469, 472, 473. But, by themselves, it is impossible to fathom what, if anything, they do admit. Thus the defendant was asked whether or not he signed the original note, of which a photostat copy was attached to the complaint. His answer was: "Looks like the defendant's signature, but the defendant never signed a note for $1101.22 plus interest, the total amount payable as shown on the note is $1147.10. The address given on the note indicates, that it is another party's note." Again he said that he "never signed a note for $1101.22 plus interest, total amount payable as shown on note $1147.10," and repeated that statement later. In his written "objection to summary judgment" he denies that it is his note, that he ever made any payment on it, that he owes the amount claimed, and demands his constitutional right of trial by jury, which he had claimed in his complaint. Even at the argument before us, he reiterated his formal denial of the amount claimed by the government.

Government counsel suggests — and this is rather borne out by the none-too-clear statements in defendant's brief — that defendant is either confused or quibbling because of an immaterial error in the note itself....