Clark v. Keesee

• Decision Date: 14 November 1957
• Docket Number: No. 2067.,2067.
• Parties: Myrvin C. CLARK, Appellant, v. Charlie N. KEESEE, Appellee.
• Court: D.C. Court of Appeals

Page 394

136 A.2d 394

Myrvin C. CLARK, Appellant, v. Charlie N. KEESEE, Appellee.

No. 2067.

Municipal Court of Appeals for the District of Columbia.

Argued September 30, 1957.

Decided November 14, 1957.

John Alvin Croghan, Washington, D. C., with whom Henry Carter, Washington, D. C., was on the brief, for appellant.

Harry A. Calevas, Washington, D. C., for appellee.

Before HOOD and QUINN, Associate Judges, and CAYTON (Chief Judge, Retired) sitting by designation under Code, § 11-776(b).

QUINN, Associate Judge.

This suit was filed by appellee on November 19, 1952, on a promissory note dated May 7, 1952. A summons was issued the same day and returned by the marshal "Not to be found." Another summons was issued on August 31, 1955, but appellant could not be located. Finally, a third summons was issued and served on November 15, 1956. Appellant filed an answer which amounted to a general denial, and then moved to withdraw his answer and substitute a motion to dismiss. He was permitted to do so, and subsequently filed a motion based on the three-year statute of limitations.¹

Appellee opposed this motion and also moved for summary judgment on the ground that there were no factual issues betwen the parties inasmuch as the only defense presented was that of limitations. He filed an affidavit stating that appellant had given him the note as reimbursement for damages he suffered as a result of an automobile collision with appellee in 1952, and that no part of it had been paid. After several unsuccessful attempts to locate appellant he instructed his attorney in November 1952 to bring suit in the District where he had learned that appellant was employed.

Appellant countered with an affidavit in which he admitted that he gave the note in question and that no part of it had been paid. He stated that when he executed the note he was living in Maryland; that shortly thereafter he moved to Washington where he resided for about six months; and that he subsequently lived in Capitol Heights, Maryland, for a year and in Alexandria, Virginia, for a year. Finally he moved to Silver Spring, Maryland, in January 1955 where he has resided ever since. During this entire period he was employed by several firms located in the District.

Appellee's attorney filed an affidavit in which he asserted that when fie originally brought this suit, he obtained appellant's business address from a local credit agency but was unable to serve him at that address. In 1955 he received word that appellant was employed by another local firm but was still unable to effect service. In November 1956 he read in a newspaper that appellant was on trial in the United States District Court and effected service there.

On April 29, 1957, the trial judge denied appellant's motion to dismiss the action and gave him ten days within which to file an answer. No action was taken on appellee's motion for summary judgment. On May 23, 1957, judgment by default was entered for appellee and this appeal was noted the following day.

The record before us is silent as to what occurred in the interval between April 29 and May 23, 1957. In this court appellee made a motion to dismiss the appeal, which we later denied. Appellant filed a memorandum in opposition to the motion in which lie alleged that on May 3, 1957, appellee's attorney addressed a letter to the trial judge calling attention to the fact that no action had been taken on his motion for summary judgment and requesting a ruling. Appellant claims that he was sent a copy of the letter and consequently did not file an answer because he was waiting for the judge to rule on the motion. For these reasons appellant has asked us, in his memorandum in opposition to the motion to dismiss the appeal, to reverse the judgment entered by default and remand the case to the trial judge with instructions to rule on appellee's motion. However, none of these facts, if they did occur, appear in the record on appeal, nor was any attempt made to bring them to the attention of the trial judge.

The failure of the lower court to rule on appellee's motion for summary judgment requires some further discussion. Appellee contends that the judge could not act on the motion because no answer had been filed in the case at that time. While this was the rule in the federal courts prior to 1946 and the Municipal Court prior to 1950, the present rule permits a claimant to move for summary judgment "at any time after the expiration of 20 days from the commencement of the action * * *."² Consequently appellee's motion was not premature and should have been acted upon. We do not regard this omission as serious, however, in the present posture of the case, for, as we have indicated, neither the error nor any prejudice to appellant's rights which it may have caused was brought to the attention of the trial judge, and thus as far as this appeal is concerned, it may be deemed to have been waived.

[2, 3] Appellant's sole assignment of error on the merits is the action of the judge in denying his motion to dismiss. Before reaching this issue we must first consider the scope of review which is allowable on an appeal from a default judgment. It is settled that a party in default may contest the sufficiency of the complaint and whether the averments in it justify the resulting judgment. He may not question the want of testimony or the insufficiency or amount of the evidence.³ The order of the judge denying appellant's motion was made before the default and represented the adjudication of a duly contested matter, and consequently we believe that it is properly before us for review.⁴

On the merits appellant contends that his motion should have been granted because the record shows that service had not been effected within the statutory period of three years after the date of the note. He relies on Maier v. Independent Taxi Owner's Ass'n, 1938, 68 App.D.C. 307, 309, 96 F.2d 579, 581, in which the rule is stated as follows:

"* * * no more is ever required [to toll the statute] than the filing of a declaration or complaint and the issuance of a summons within the...