Bagby v. United States
| Decision Date | 15 October 1952 |
| Docket Number | No. 14581.,14581. |
| Citation | 199 F.2d 233 |
| Parties | BAGBY v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Jerome F. Duggan and Edward A. Dubinsky, St. Louis, Mo., for appellant.
Isadore A. Honig, Sp. Litigation Atty., Washington, D. C., (Ed Dupree, Gen. Counsel, A. M. Edwards, Jr., Asst. Gen. Counsel, and Nathan Siegel, Sol., all of the Office of Rent Stabilization, Washington, D. C., on the brief), for appellee.
Before SANBORN, RIDDICK and COLLET, Circuit Judges.
The United States Housing Expediter brought this action in the name of the United States, as plaintiff, against the defendant-appellant to recover rentals charged in excess of the maximum legal rents established for the housing accommodations located in the City of St. Louis, Missouri. The total overcharges sued for amounted to $504.00 and are alleged to have accrued from August 22, 1949, to July 24, 1950. The action was filed on April 13, 1951. That part of the overcharges accruing within one year preceding the filing of the suit was $147.00, which latter amount the complaint prayed be trebled. The complaint further prayed for an injunction against the future violation of the Housing and Rent Act of 1947, 50 U.S.C.A.Appendix, § 1881 et seq. The answer denied in general terms the substantive allegations of the complaint.
Two requests for admissions of fact were made by plaintiff of defendant, which sought to establish the fact that Homer M. Heidger was defendant's tenant from August 22, 1949, to July 24, 1950, that the maximum legal rent during that period for the premises he occupied was $9.50 per week, that the amount paid was $20.00 per week, that no part thereof had been refunded, that more than 30 days had elapsed since the rent payments were made; that no action for statutory damages had been instituted by the tenant against defendant, and that the premises were controlled housing accommodations within the meaning of the Housing and Rent Act of 1947.
Defendant answered the interrogatories saying that she was without sufficient information to say whether the premises were controlled housing accommodations, that she had a tenant in the premises from on or about August 22, 1949, to on or about July 24, 1950, but that she was without sufficient records to say whether it was Homer M. Heidger or how much was paid, but that she did not receive $20.00 per week from Heidger, that she did not owe him any refund, and in response to whether he had instituted any action, said that Heidger employed counsel but what counsel had done she could not say.
Upon that state of the record on August 11, 1951, plaintiff filed a motion for summary judgment, basing it on the pleadings and interrogatories above referred to and two affidavits which supplied all of the facts essential to a recovery. With the affidavits were submitted copies of letters to the Office of Housing Expediter from defendant and an attorney appearing to represent her, in which the rental of the property to Heidger at the rent alleged for the period above stated was admitted, and indicating knowledge of the fixing of maximum rents on the premises at $9.50 per week. The motion for summary judgment and supporting documents appear to have been served on defendant, but there was no response thereto. On September 26, 1951, the District Court sustained the motion for summary judgment and entered judgment providing that defendant should pay to the Treasurer of the United States through the Office of Rent Stabilization for and on behalf of Homer M. Heidger $504.00, that she should pay to the United States double damages in the amount of $294.00, and enjoining her from future violations of the Act. On October 5, 1951, defendant filed a motion to set aside the summary judgment and requested oral argument on the motion. The record shows that the motion of defendant to set aside the summary judgment was argued, submitted and overruled.
Three assignments of error are presented for determination:
1. The Court erred in granting plaintiff's motion for summary judgment without affording defendant a hearing on the motion.
2. The Court erred in awarding double damages to plaintiff on its motion for summary judgment.
3. The Court erred in granting plaintiff on its motion for summary judgment a broad and sweeping injunction against the defendant.
In support of the charge that defendant should have been afforded a hearing on the motion for summary judgment, she says that the record shows (which it does) that there was a docket entry made on September 20, 1951, setting the case for trial on November 6, 1951; that the judgment states that the motion for summary judgment came on for hearing on September 19, 1951, whereas there was no docket entry of a hearing on September 19; that the record is silent — "upon two salient points: (1) The plaintiff never served notice upon defendant that it intended to take up its motion; and (2) the District Court granted the relief sought without a hearing, the opening sentence of the judgment notwithstanding to the contrary", when Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. provides that a hearing upon such a motion be after ten days' notice.
Relying upon United States v. Dillman, 5 Cir., 146 F.2d 572, 574, wherein it was said:
"The basic elements of a full and fair hearing `include the right of each party to be apprized of all the evidence upon which a factual adjudication rests, plus the right to examine, explain or rebut all such evidence.\'"
and Brown v. Quinlan, 7 Cir., 138 F.2d 228, 229:
"To effect an involuntary termination of a suit requires, in the absence of waiver of final hearing, a hearing upon a motion for summary judgment or to dismiss the complaint."
defendant says that for lack of notice of a hearing on the motion she was denied an opportunity to show that there was an issue of fact to be tried.
The judgment may have been incorrect in stating that there was a hearing on the motion on September 19, 1951. The docket entries show no hearing on that date and it is not controverted that there was no hearing. The recital in the judgment that "This cause came on to be heard * * * on September 19, 1951," may be correct, however, if the words "came on to be heard" were intended to mean that the motion was considered by the court on that day. And that is probably what was intended, for reasons which we shall presently note. But in our judgment the recital is unimportant. What is important is whether for want of notice defendant was denied an opportunity to be heard, or whether she waived a hearing by not requesting one.
Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., relating to summary judgment provides, subsection (c), that:
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