Delray Beach Aviation Corp. v. Mooney Aircraft, Inc.

• Decision Date: 10 May 1963
• Docket Number: Civ. No. 3015.
• Citation: 217 F. Supp. 255
• Parties: DELRAY BEACH AVIATION CORPORATION, a Florida Corporation, and Bert Boldt, Plaintiffs, v. MOONEY AIRCRAFT, INC., Defendant.
• Court: U.S. District Court — Western District of Texas

217 F. Supp. 255

DELRAY BEACH AVIATION CORPORATION, a Florida Corporation, and Bert Boldt, Plaintiffs, v. MOONEY AIRCRAFT, INC., Defendant.

Civ. No. 3015.

United States District Court W. D. Texas, San Antonio Division.

May 10, 1963.

Preston H. Dial, Jr., and Robert B. Thornton of Green, Green & Wiley, San Antonio, Tex., for plaintiffs.

Joseph F. Leonard, Jr., Kerrville, Tex., for defendant.

GRAVEN, Senior District Judge (assigned).

The plaintiffs in this action seek judgment against the defendant on a judgment rendered in their favor and against the defendant by the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, on April 7, 1961. The defense of the defendant is that the Florida Court rendering the judgment against it was lacking in jurisdiction to do so.

The defendant, Mooney Aircraft, Inc., is a Kansas corporation engaged in the manufacture of airplanes at Kerrville, Texas. It will hereinafter be frequently referred to as Mooney Aircraft. On September 23, 1958, Mooney Aircraft entered into a written agreement with the Metropolitan Aircraft Corporation which is designated as "Distribution and Sales Agreement." The latter will hereinafter be frequently referred to as Metropolitan Aircraft. It was a Florida corporation. Its place of business was in Miami, Florida. During the period from October 31, 1958, until November 1, 1961, the Mooney Sales Company, a Texas corporation, had to do with the sales and national advertising of the airplanes manufactured by Mooney Aircraft. During the period of time here pertinent, Hal Rachal, a practicing attorney, was President and Chairman of the Board of Directors of Mooney Aircraft and active in the management of its affairs. He was also its general counsel. During the same period Richard Martin was in the employ of Mooney Sales Company and supervised the distribution of the defendant's airplanes in Florida. During the same period Richard H. Olsen, a practicing attorney of Miami, Florida, was Vice President of Metropolitan Aircraft and its general attorney.

In May 1959 in Miami the plaintiff Delray Beach Aviation Corporation purchased from the Metropolitan Aircraft Corporation an airplane manufactured by Mooney Aircraft. On June 29, 1959, while the airplane was being flown by the plaintiff, Bert Boldt, it crashed. The crash resulted in personal injury to him and total destruction of the airplane. On March 17, 1960, the plaintiffs brought an action in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, against Metropolitan Aircraft Corporation and Mooney Aircraft for damages sustained as a result of the crash. The return of the Sheriff of Dade County, Florida, recited that on March 18, 1960, in Dade County he served the same on Mooney Aircraft by making service on "R. H. Olsen, Res. Agent" of the corporation and that he served the same on Metropolitan Aircraft Corporation by making service on "R. H. Olsen, V. Pres." The R. H. Olsen referred to in the returns of service was one and the same person as Richard H. Olsen. In their complaint the plaintiffs alleged that the crash of the airplane was caused by the malfunctioning of the fuel tank selector valve. They alleged that at the time the airplane was sold to the Delray Beach Aviation Corporation by Metropolitan Aircraft the selector valve was defective. They charged both Metropolitan Aircraft and Mooney Aircraft with breaches of duty in connection therewith. They asked compensatory damages in excess of $5,000.00.

On April 11, 1960, Metropolitan Aircraft, appearing by its attorney, Richard H. Olsen, filed a motion to dismiss on the ground that the complaint failed to state a cause of action upon which relief could be granted. On May 5, 1960, the attorney for the plaintiffs mailed a copy of the complaint to Mooney Aircraft. On May 19, 1960, Richard H. Olsen appeared for Mooney Aircraft and filed in its behalf a special appearance and motion to quash service on the ground that no valid service of process had been made upon it and that the Court was lacking in jurisdiction as to it. On September 8, 1960, the motions of both defendants came on for hearing and on the same day the Court entered an order denying both motions. The Court in its order granted the defendants twenty days to answer or plead. On November 8, 1960, Metropolitan Aircraft filed its answer which was in substance a general denial. On December 28, 1960, the plaintiffs filed notice of trial. Notice of the motion was given to Richard H. Olsen as attorney for both defendants. On December 30, 1960, on motion of the plaintiffs, the Court dismissed the action as to Metropolitan Aircraft. On February 21, 1961, on motion of the plaintiffs, Mooney Aircraft was adjudged to be in default for failure to answer or plead. On March 22, 1961, the plaintiffs gave notice to Richard H. Olsen and to Mooney Aircraft that the case as to the latter would come on for trial on April 3, 1961. On April 7, 1961, following a hearing, the Court entered judgment against Mooney Aircraft and in favor of the Delray Beach Aviation Corporation in the sum of $17,364.00 and against Mooney Aircraft in favor of Bert Boldt in the sum of $655.00. No appeal was taken by Mooney Aircraft. The plaintiffs' present action is based upon that judgment.

The pivotal question in this case is whether the Florida Court had jurisdiction as to Mooney Aircraft. The plaintiffs contend that the Florida Court did have jurisdiction as to Mooney Aircraft. They assert that that Court acquired jurisdiction by the appearance of Richard H. Olsen as attorney for Mooney Aircraft. Mooney Aircraft asserts that Richard H. Olsen lacked authority to appear for it. The plaintiffs assert by way of alternative that even if it be found that Richard H. Olsen lacked authority to appear for Mooney Aircraft the Florida Court acquired jurisdiction as to Mooney Aircraft by the service of process made on Richard H. Olsen. Mooney Aircraft asserts that the service of process made upon Richard H. Olsen was invalid so far as the service pertained to it and that the Florida Court did not acquire jurisdiction over it thereby. The plaintiffs also contend that the ruling of the Florida Court that it had jurisdiction as to Mooney Aircraft is res judicata as to the question of jurisdiction.

It is well settled that if a defendant enters a special appearance for the sole purpose of quashing service for want of jurisdiction and is heard on the question and his objection to jurisdiction is overruled and he seeks no review and a judgment is subsequently entered against him on the merits, he cannot attack the judgment on the ground of lack of jurisdiction when sued upon the judgment in another jurisdiction. Baldwin v. Iowa State Traveling Men's Association (1931), 283 U.S. 522, 51 S.Ct. 517, 75 L.Ed. 1244; Restatement of Judgments, Section 9. See, also, Mike Hooks, Inc. v. Pena (5th Cir. 1963), 313 F.2d 696, 699. Restatement of Judgments, Section 9, states, in part:

"Where * * * the defendant appears in the action only to object that the court has no jurisdiction over him, that is where he enters a special appearance, the court does not acquire jurisdiction over him because of his appearance * * * except to decide the question so raised. But if the court determines that it has jurisdiction over him, even though that determination is erroneous on the facts * * * the determination is res judicata between the parties. * * *.

"If the defendant appears in an action for the purpose of objecting that the court has no jurisdiction over him, he thereby submits to the court for its determination the question whether the court has jurisdiction over him. If the court erroneously determines that it has jurisdiction over the defendant, he has ground for reversal in an appellate court, and ground for carrying the case to the Supreme Court of the United States since a judgment rendered against him by a court having no jurisdiction over him deprives him of property without due process of law in violation of the provisions of the Fourteenth Amendment to the Constitution of the United States. If, however, he does not avail himself of these remedies * * * the defendant cannot thereafter successfully contend that the judgment was void, even though in fact the court had no jurisdiction over him. The defendant, having submitted the question of jurisdiction to the court, the court has jurisdiction to determine the question of its jurisdiction over the defendant, and the determination of that question is res judicata."

In the same Section it is also stated:

"Where an action is brought against a defendant over whom the court has no jurisdiction, and the defendant does not appear in the action and judgment is rendered against him by default, the judgment is void. * * *."

In the case of National Exchange Bank of Tiffin v. Wiley (1904), 195 U.S. 257, 25 S.Ct. 70, 49 L.Ed. 184, the plaintiff brought an action against the defendant upon a judgment. The jurisdiction of the court which entered the judgment was based upon the appearance of an attorney in behalf of the defendant Wiley. He claimed that the appearance was unauthorized. The Court held that the judgment was subject to collateral attack on that ground. The Court stated (195 U.S. p. 268, 25 S.Ct. p. 74):

"In other words, the defendant Wiley could show collaterally that he was not legally before the court—as he was not in any just sense—if his appearance was entered and judgment confessed by one who had, in fact, at the time, no authority to do either; and, consequently, that the court was without jurisdiction to proceed except on legal notice to him or without his appearance in person or by an attorney authorized to represent him. If law and usage in Ohio were to the contrary, then, such law and usage would be in conflict with the Constitution of the United States; for it is thoroughly settled that a personal judgment against one not before the court by

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