Bookout v. Beck

• Decision Date: 23 December 1965
• Docket Number: No. 20001.,20001.
• Parties: Harold D. BOOKOUT and Betty Houser, Appellants, v. Linda Lou BECK and Daniel L. Beck, by their guardian ad litem, Edith P. Beck, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

354 F.2d 823 (1965)

Harold D. BOOKOUT and Betty Houser, Appellants, v. Linda Lou BECK and Daniel L. Beck, by their guardian ad litem, Edith P. Beck, Appellees.

No. 20001.

United States Court of Appeals Ninth Circuit.

December 23, 1965.

Ernest M. Thayer and J. Roger Samuelsen, of Bronson, Bronson & McKinnon, San Francisco, Cal., for appellants.

James S. Martin, San Leandro, Cal., Dulberger, Bulen, Heeter & Salb, Indianapolis, Ind., for appellees.

Before CHAMBERS, HAMLIN and BROWNING, Circuit Judges.

CHAMBERS, Circuit Judge:

The district court's final order refusing to vacate a judgment of appellees against appellants is reversed.

The Becks are citizens of California and Bookout and Houser are citizens of Indiana. They were involved in an automobile collision at Santa Rosa, New Mexico, in July, 1962. The Becks in September, 1962, elected to sue Bookout and Houser in the Northern District of California for their injuries. Diversity jurisdiction was pleaded. Initial "service"¹ on Bookout and Houser was obtained by a deputy United States marshal in Indiana handing copies of the summons and complaint to the two defendants in Indiana. Further, it would appear that counsel for Becks sent copies of the complaint and summons by registered mail to the secretaries of state of California and of New Mexico.² California has a long-arm statute³ on motorists which permits service upon a defendant operator by sending the papers to the California director of motor vehicles. New Mexico has a similar statute,⁴ but requires the delivery of the papers to its secretary of state.

Thus, it may be seen that the Becks did not even comply with the routine of the California state statute when they delivered papers to the California secretary of state instead of the California director of motor vehicles. Assuming the accident had occurred on a California highway, there would have been no valid service because of this failure to comply.

We find no federal rule in premises such as we have here that would authorize process of the Northern District of California to personally reach Bookout and Houser through the secretary of state of New Mexico or by personal delivery of papers to defendants in Indiana in a suit out of the Northern District of California. Rule 4(d) (7), Federal Rules of Civil Procedure, would authorize service according to the law of the state in which the district court sits.⁵ Thus, assuming no due process problems, the Becks still do not have compliance on service of papers with any statute or federal rule prescribing the manner of service.⁶

Assuming California and New Mexico had statutes authorizing exactly what was here done, we are satisfied they would not survive such cases as Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057; and Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091.⁷

Appellees say they could not sue in New Mexico in 1962 because the federal venue statute, 28 U.S.C. § 1391, did not permit it at the time of filing their complaint. Of course, they were entitled to be heard somewhere. It has not been suggested that the state courts of New Mexico or the state and federal courts of Indiana were not open to the Becks.

Obviously, 28 U.S.C. 1391(a) is of no aid to plaintiff because it is a venue section and jurisdiction must be first found over the subject matter and the person before one reaches venue. Here we have held that there was no personal jurisdiction. Undoubtedly there was subject matter jurisdiction.

The appellees say the Bookout-Houser direct attack by motion in the Northern District of California comes too late because on December 12, 1963, the judgment was rendered with the full knowledge of the defendants (default was requested on October 21, 1963) and the defendants did nothing about moving to set aside the judgment until October 29, 1964.

Rule 60(b) of the Federal Rules of Civil Procedure provides that a motion may be made within a reasonable time to set aside a judgment on the ground it is void. On certain other grounds for relief, the motion to set aside a judgment must be made within a year. Here, we say that acting within a year was within a reasonable time. Certainly it could properly be no shorter than the time specified on other reasons which are limited to one year. In some other case we can decide, when the judgment is alleged to be void, whether defendants...