Bush v. Bush, 5587.

• Decision Date: 09 January 1933
• Docket Number: No. 5587.,5587.
• Citation: 61 App. DC 357,63 F.2d 134
• Parties: BUSH v. BUSH.
• Court: U.S. Court of Appeals — District of Columbia Circuit

61 App. DC 357, 63 F.2d 134 (1933)

BUSH v. BUSH.

No. 5587.

Court of Appeals of the District of Columbia.

Argued November 10, 1932.

Decided January 9, 1933.

Alvin L. Newmyer, of Washington, D. C., for appellant.

Joseph A. Burkart and Henry I. Quinn, both of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

ROBB, Associate Justice.

Appeal from a final decree in the Supreme Court of the District entered upon a decree pro confesso.

On May 31, 1927, appellee filed a bill for the cancellation of an assignment and trust agreement dated August 30, 1926, or, in the alternative, for the removal of appellant as trustee. Motion for the appointment of a receiver, and supporting affidavit of appellee, were filed September 27, 1927, and served on appellant October 3, 1927, at Reno, Nev., to which place she had gone for the purpose of securing a divorce from appellee (whom she had married on September 19, 1926).

On November 4, 1927, there was filed an amended bill of complaint containing the allegations and prayers of the original bill, and adding a paragraph. On August 26, 1929, there was filed an amended and supplemental bill of complaint containing substantially the allegations and prayers of the original bill, but adding paragraphs designed to meet changed conditions; that is, the maturity of certain notes to be held in trust, etc. On December 18, 1929, petition to add an additional party defendant was granted. On April 28, 1931, a subpœna was issued, and on May 5, 1931, service was had upon appellant in the District.

On June 10, 1931, a decree pro confesso was taken; no appearance having been entered for appellant. Thereafter, on June 30, following, present counsel for appellant filed a petition to set aside the decree pro confesso. He accompanied this petition with his own affidavit, in which he set forth that he had been retained as counsel subsequent to the entry of the decree, and that his client's failure to answer was attributable to her physical condition.

In opposition to the motion to set aside the decree, counsel for appellee filed his affidavit containing the following statements: On October 12, 1927, appellant's counsel at Reno requested him to send counsel a copy of the bill, which was done; and its receipt was acknowledged in a communication in which counsel requested that further communications intended for appellant be forwarded to him, and he would see that she received them. In the fall of 1927 a member of the District of Columbia bar called to see appellee's counsel in behalf of appellant. Counsel for appellee urged that counsel for appellant obtain his client's consent to enter an appearance and file an answer in her behalf, that the case might be disposed of expeditiously. After communicating with his client, counsel for appellant notified counsel for appellee that he could not enter an appearance. About two years later, in 1929, a Philadelphia attorney called on counsel for appellee and sought to obtain a compromise. Again counsel for appellant unsuccessfully urged that an appearance be entered and an answer filed. In the spring of 1931, another member of the District of Columbia bar called upon appellee's counsel and stated that he would enter an appearance in a short time and file an answer, but before doing so he desired to know if there was a prospect of compromise. On a number of occasions counsel for appellee urged counsel for appellant to make good his promise to enter an appearance and file an answer. On each occasion a new promise was made.

On May 5, 1931, about a month and a half after the first interview with appellant's then local attorney, process was served on appellant within this jurisdiction. After such service, appellant's counsel requested counsel for appellee to allow him a few days more time than that provided by the rules of court within which to file an answer. This request was granted and the time extended, though not of record, to June 4th. On that day appellant's attorney urged a further delay, and for the first time the illness of appellant was suggested. Appellee's counsel then agreed to wait until June 8th. When that time arrived, counsel for appellee received from counsel for appellant a certificate from an "osteopathic physician" stating that appellant was under his professional care, confined to bed, and unable to appear in court. At the same time appellant's counsel advised counsel for appellee that he had informed appellant that he could not represent her further, and urged appellee's counsel to wait until June 10th before taking a decree pro confesso, and that in the meantime counsel would advise appellant that unless an answer was filed by that time a decree pro confesso would be taken.

In opposition to the foregoing affidavit of counsel for appellee, counsel for appellant, on October 14, 1931, filed an additional affidavit in support of the motion to vacate and set aside the decree. This affidavit was accompanied by a proposed answer to the merits of the bill. In his affidavit counsel stated that appellant, at the time process was issued against her, and continuously up to the date of the motion to vacate the pro confesso decree, "was under medical treatment and a patient in an invalid home and...