Hicklin v. Edwards, No. 15315.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtWOODROUGH, JOHNSEN and VOGEL, Circuit
Citation226 F.2d 410
Docket NumberNo. 15315.
Decision Date28 October 1955
PartiesTheresa HICKLIN, Appellant, v. Robert EDWARDS, Appellee.

226 F.2d 410 (1955)

Theresa HICKLIN, Appellant,
v.
Robert EDWARDS, Appellee.

No. 15315.

United States Court of Appeals Eighth Circuit.

October 28, 1955.


226 F.2d 411

Donald L. Randolph, Kansas City, Mo., for appellant.

David H. Clark and Lane D. Bauer, Kansas City, Mo. (Sebree, Shook, Hardy & Ottman, Kansas City, Mo., on the brief), for appellee.

Before WOODROUGH, JOHNSEN and VOGEL, Circuit Judges.

WOODROUGH, Circuit Judge.

This appeal is taken by Theresa Hicklin to reverse a judgment which denied a motion filed by her to set aside a default judgment for some $1,300 and costs rendered against her in the action in which her motion was filed. She stated in the motion that she was never served with summons in the action either personally or by substituted service according to the statute and that the judgment and a garnishment proceeding had thereunder were void and she had a meritorious defense.

After a hearing had on the motion, the trial court rendered its decision and order (which does not appear to have been reported) as follows:

"Plaintiff instituted this suit to recover damages for rent in excess of the maximum ceiling rent on premises owned by the defendant and occupied by the plaintiff. The Marshal\'s return recites that personal service was had upon the defendant, being in words and figures as follows:
"`I hereby certify and return, that on the 25th day of August, 1953, I received this summons and served it together with the complaint herein as follows: on the 27th day of August by delivering a copy of the within summons with a copy of complaint attached thereto, to the within named Theresa Hicklin, at 213 Independence Avenue, Kansas City, Western District of Missouri.\'
"Thereafter a default judgment for treble damages was rendered against the defendant in an amount in excess of $1,300. More than one year after the default judgment was entered, an execution was requested by the plaintiff and issued by the clerk of the court, and the bank account of defendant attached in the hands of a bank, as garnishee.
"Thereafter the defendant filed motion to set aside the default on the ground that she had had no notice of the filing of such suit or the entry of the judgment; that the summons was not served upon the defendant nor any person for her, within the meaning of the statute.
"Defendant supported her motion by an affidavit signed by her sister in-law1 stating that she was at
226 F.2d 412
the address which was described in the return as the home of the defendant; that she was not a resident of such home; that the marshal served the complaint and summons upon her, and that she delivered it to the husband of the defendant, from whom the defendant was at that time estranged, and that she never received such summons or any knowledge thereof from her husband.
"It is the general rule of Federal law that the question here involved is to be determined in accordance with Federal law, but it appears that there is no Federal law on the subject in this circuit that we have been able to find. There is a division of opinion among the Federal Courts as to whether or not such return is binding upon the defendant. In Woods v. Zellers, 9 F.R.D. 6, a District Court in Pennsylvania followed the State law and held that such a return was binding; other decisions have held that it is only prima facie and may be collaterally attacked. It affects the very validity of all judgments.
"It is admittedly the law in Missouri that the return of the serving officer may not be collaterally attacked, and that those who are damaged by it, must resort to an action against the serving officer for false return.2 In the absence of any Federal authority, the law of the state is very persuasive and in the interest of uniformity should be followed. It is therefore my conclusion that the return of the serving officer is conclusive as to facts stated in the return and may not be collaterally attacked.
"The `Motion to Set Aside Judgment and Proceedings\' is therefore hereby overruled."

It is contended for Mrs. Hicklin on this appeal that the default judgment rendered against her without summons served upon her and without any notice or knowledge on her part of the pendency of the action was void and that the court erred in holding that the return of the serving officer was conclusive against her; that the court should...

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66 practice notes
  • Ruddies v. Auburn Spark Plug Co., No. 60 Civ. 4376.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 9, 1966
    ...is void, relief under Rule 60(b) (4) is appropriate. See Austin v. Smith, 114 U.S.App.D.C. 97, 312 F.2d 337 (1962); Hicklin v. Edwards, 226 F. 2d 410 (8th Cir. 1955); Bruce v. Paxton, 31 F.R.D. 197 261 F. Supp. 658 Plaintiff has argued that Auburn's delay in making the instant motion after ......
  • Stafford v. Dickison, No. 4193
    • United States
    • Supreme Court of Hawai'i
    • September 7, 1962
    ...in the original suit. 10 To the same effect are Schwarz v. Thomas, 95 U.S.App.D.C. 365, 222 F.2d 305 (D.C.Cir.) and Hicklin v. Edwards, 226 F.2d 410 (8th Cir.). Cf., Perkins v. Sykes, supra, in which the ground for setting aside the judgment was 'surprise,' and the circumstances were somewh......
  • Monster Heavy Haulers, LLC v. Goliath Energy Servs., LLC, No. 20160080
    • United States
    • United States State Supreme Court of North Dakota
    • September 2, 2016
    ...convincing evidence.’ ” O'Brien [v. R.J. O'Brien & Assocs., Inc.] , 998 F.2d [1394,] 1398 [ (7th Cir.1993) ] (quoting Hicklin [v. Edwards, 226 F.2d 410], 414 [ (8th Cir.1955) ].) It is clear from the record that Shaw cannot prove that he was not served with process as he claims.509 F.3d 116......
  • Monster Heavy Haulers, LLC v. Goliath Energy Servs., LLC, No. 20160080
    • United States
    • United States State Supreme Court of North Dakota
    • September 15, 2016
    ...convincing evidence.'" O'Brien [v. R.J. O'Brien & Assocs., Inc.], 998 F.2d [1394,] 1398 [(7th Cir. 1993)] (quoting Hicklin [v. Edwards, 226 F.2d 410], 414 [(8th Cir. 1955)]. It is clear from the record that Shaw cannot prove that he was not served with process as he claims.509 F.3d 1161, 11......
  • Request a trial to view additional results
66 cases
  • Ruddies v. Auburn Spark Plug Co., No. 60 Civ. 4376.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 9, 1966
    ...is void, relief under Rule 60(b) (4) is appropriate. See Austin v. Smith, 114 U.S.App.D.C. 97, 312 F.2d 337 (1962); Hicklin v. Edwards, 226 F. 2d 410 (8th Cir. 1955); Bruce v. Paxton, 31 F.R.D. 197 261 F. Supp. 658 Plaintiff has argued that Auburn's delay in making the instant motion after ......
  • Stafford v. Dickison, No. 4193
    • United States
    • Supreme Court of Hawai'i
    • September 7, 1962
    ...in the original suit. 10 To the same effect are Schwarz v. Thomas, 95 U.S.App.D.C. 365, 222 F.2d 305 (D.C.Cir.) and Hicklin v. Edwards, 226 F.2d 410 (8th Cir.). Cf., Perkins v. Sykes, supra, in which the ground for setting aside the judgment was 'surprise,' and the circumstances were somewh......
  • Monster Heavy Haulers, LLC v. Goliath Energy Servs., LLC, No. 20160080
    • United States
    • United States State Supreme Court of North Dakota
    • September 2, 2016
    ...convincing evidence.’ ” O'Brien [v. R.J. O'Brien & Assocs., Inc.] , 998 F.2d [1394,] 1398 [ (7th Cir.1993) ] (quoting Hicklin [v. Edwards, 226 F.2d 410], 414 [ (8th Cir.1955) ].) It is clear from the record that Shaw cannot prove that he was not served with process as he claims.509 F.3d 116......
  • Monster Heavy Haulers, LLC v. Goliath Energy Servs., LLC, No. 20160080
    • United States
    • United States State Supreme Court of North Dakota
    • September 15, 2016
    ...convincing evidence.'" O'Brien [v. R.J. O'Brien & Assocs., Inc.], 998 F.2d [1394,] 1398 [(7th Cir. 1993)] (quoting Hicklin [v. Edwards, 226 F.2d 410], 414 [(8th Cir. 1955)]. It is clear from the record that Shaw cannot prove that he was not served with process as he claims.509 F.3d 1161, 11......
  • Request a trial to view additional results

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