Assmann v. Fleming, 13441.

• Decision Date: 29 January 1947
• Docket Number: No. 13441.,13441.
• Parties: ASSMANN v. FLEMING, Temporary Controls Adm'r, et al.
• Court: U.S. Court of Appeals — Eighth Circuit

159 F.2d 332 (1947)

ASSMANN v. FLEMING, Temporary Controls Adm'r, et al.

No. 13441.

Circuit Court of Appeals, Eighth Circuit.

January 29, 1947.

John C. Mullen and Thomas J. Sheehan, Jr., both of Omaha, Neb. (Gerald M. Mullen, of Omaha, Neb., on the brief), for appellant.

Jacob W. Rosenthal, Atty., OPA, (William E. Remy, Deputy Commissioner of Price Administration for Enforcement, David London, Director, Litigation Div., and Albert M. Dreyer, Chief, Appellate Branch, all of Washington, D.C., George E. Leonard, Regional Litigation Atty., of New York City, and Allen Wilson, Sp. Trial Atty., of Omaha, Neb., on the brief), for appellee Temporary Controls Administrator.

Alexander McKie, Jr., and Barton H. Kuhns, of Finlayson, McKie & Kuhns, both of Omaha, Neb., appeared on statement by appellee First Nat. Bank of Omaha.

Before GARDNER, THOMAS, and JOHNSEN, Circuit Judges.

GARDNER, Circuit Judge.

This is an appeal from an order denying appellant's motion to vacate a consent judgment entered against him on December 28, 1945. To avoid confusion, the parties will be referred to as they were designated in the trial court. At all times pertinent to this action, defendant was and still is a retail clothier dealing in the sale of wearing apparel, at Omaha, Nebraska. On December 28, 1945, plaintiff filed a complaint charging defendant with the violation of the Emergency Price Control Act of 1942 and Maximum Price Regulation No. 580 as amended, in the way of overcharges in an amount exceeding $3,374.01 in the sale of merchandise and in the matter of the making and maintenance of records. The complainant demanded judgment for three times the alleged overcharges and for injunctive relief. With this complaint was filed a stipulation in writing, dated December 27, 1945, signed by attorneys for plaintiff and by the defendant personally. In this stipulation defendant waived the service of process, answer, and any and all defenses. He also waived hearing and the entry of findings of fact and conclusions of law, and consented to the entry of a final judgment incorporating the stipulation as a part thereof. The stipulation recited that,

"5. The single amount of the overcharges listed in said complaint is stipulated to be $3,374.01.

"6. It is hereby specifically stipulated that the claim of the plaintiff for treble damages in the amount of $10,122.03, subject to the approval of the court, is hereby settled and compromised, and is to be placed in judgment against the defendant for the amount of $5,061.01, together with the costs of said action in the amount of $15.00. The Attorney's docket fee is to be waived.

"7. Defendant specifically stipulates to the entry of a permanent injunction enjoining him from selling, delivering or offering to sell or deliver apparel, apparel accessories or any other items covered by Maximum Price Regulation No. 580 at prices in excess of the maximum prices established by said Regulation, or set forth on or determinable from his Pricing Chart which is on file with the Omaha District Office of the Office of Price Administration, and further that he may be enjoined from violating any of the pricing rules or record keeping rules set in said Regulation.

"8. It is further stipulated that Defendant shall, on or before February 28, 1946, prepare and file his amended base date pricing chart as required by and prescribed in said Maximum Price Regulation No. 580.

"9. A final judgment for money damages and for a permanent injunction in the form hereto attached and approved by the defendant, may be entered against the defendant without notice at any time hereafter."

Attached to this stipulation was a copy of the form of judgment proposed to be entered and this form of judgment was endorsed over the signature of defendant, "approved as to form." In pursuance of this stipulation judgment was entered on December 28, 1945. On the same date of the entry of the judgment plaintiff by his attorney filed a written satisfaction of the money part of the judgment.

On January 4, 1946, defendant filed a motion to vacate the judgment and praying that the First National Bank of Omaha, Nebraska, be made a party defendant and be enjoined from paying defendant's certified check in the sum of $5,061.01 given in satisfaction of the judgment. The motion as originally filed recited that during the month of December, 1945, agents of the plaintiff reported to defendant that he had been selling merchandise in excess of the ceiling price fixed; that he owed plaintiff a large sum of money in the nature of overcharges; that if defendant would make a settlement of the amount due the plaintiff there would be no court action nor publicity about the matter, but the transaction would be closed for all time; that at the time defendant was short of help, was in the midst of a Christmas rush of business, and thinking that perhaps mistakes had been made in the operation of his business, deemed it best for the welfare of his business quietly to settle the matter and prevent litigation and undue publicity; that the agents of plaintiff represented to defendant that if he would pay the sum of $5,061.01, all claims on account of overcharges would be settled without publicity and without litigation; that defendant, relying upon these representations, without making examination of his records agreed to pay plaintiff the sum of $5,061.01, and "signed the pleadings which are on file in this case in this court; that at the time the defendant signed said pleadings and paid said sum of money he was convinced that no court action would be necessary and he would receive no publicity; that the pleadings which the defendant signed were filed by the plaintiff in this court and part of pleadings were published in the daily newspaper in Omaha, Nebraska, and the defendant did receive undue publicity which has been harmful to the defendant and his business." That by reason of the publicity referred to, defendant consulted attorneys and had a thorough check made of the records of his business to ascertain whether or not he had been selling merchandise in violation of the ceiling prices, and that the representations made by plaintiff's agents to induce him to make settlement were false and fraudulent; that he was induced to consent to an injunction and pay unjust demands without being properly advised of his rights and without a full knowledge of the demands and representations of plaintiff's agents and under a misapprehension of the facts. He then asked that he be authorized to stop payment on the certified check which he had issued; that the First National Bank of Omaha be made a party and be directed to stop payment on the check, and that the judgment be set aside. Attached to this motion and made a part of it was an affidavit of defendant's daughter which went solely to the question of whether or not defendant had sold merchandise in excess of the ceiling price. It contained no allegation with reference to any misrepresentations made by the agents of plaintiff, and the motion was not supported by a proposed answer nor affidavit of merits.

The court entered an order making the bank a party, authorizing defendant to stop payment on the check for $5,061.01, holding the injunction entered in abeyance until the hearing on the motion to vacate, and setting the motion down for hearing. At a later date and before the hearing on the motion, the court by order directed defendant to prepare proposed answer to be tendered at the hearing, and thereafter defendant prepared and tendered a proposed answer to plaintiff's complaint, in which he denied the allegations of the complaint which charged him with a violation of the Price Control Act. 50 U.S.C.A Appendix, § 901 et seq. On leave of court defendant filed an amended and supplemental motion to set aside the judgment, reiterating the allegations as to fraudulent representations of plaintiff's agents and charging a breach of the alleged compromise agreement in securing and entering the judgment. Plaintiff filed response to defendant's motion, putting in issue all the allegations charging plaintiff's agents with fraud and misrepresentations. There were various continuances and certain orders relative to permitting the introduction of oral testimony at the hearing of the motion. The court, after hearing oral testimony on the issues raised by the motion to vacate the judgment, after hearing argument of counsel for the respective parties, and considering typewritten briefs filed by them, entered its order denying the motion to vacate, and it is from this order that defendant prosecutes his appeal.

In seeking reversal defendant in substance contends that: (1) the court erred in...