Hopkins v. McClure

• Decision Date: 10 March 1945
• Docket Number: No. 3060.,3060.
• Citation: 148 F.2d 67
• Parties: HOPKINS v. McCLURE.
• Court: U.S. Court of Appeals — Tenth Circuit

148 F.2d 67 (1945)

HOPKINS v. McCLURE.

No. 3060.

Circuit Court of Appeals, Tenth Circuit.

March 10, 1945.

George Bingaman, of Purcell, Okl., for appellant.

Ram Morrison, of Oklahoma City, Okl., for appellee.

Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.

MURRAH, Circuit Judge.

This appeal challenges the judgment of the United States District Court for the Eastern District of Oklahoma, which ordered payment of an alimony judgment out of funds realized from condemnation proceedings, and held in the registry of the court for distribution to the owners of the land taken.

On September 26, 1942, the United States Government, acting by and through its Special Attorney Curtis P. Harris, and under authority of the Second War Powers Act, 1942, 56 Stat. 177, 50 U.S.C.A.Appendix, § 632, filed condemnation proceedings against a tract of land in Cleveland County, Oklahoma, allegedly owned by Ruth Idell Hopkins, appellant here, her father E. E. Hopkins (also known as Ernest E. Hopkins), J. W. Hopkins and H. C. Freeney. Pursuant to notice to all interested parties, the trial court on December 15, 1942, tried the title to the tract of land and adjudged "a life estate to Ruth Idell Hopkins, subject to the occupancy rights of Ernest E. Hopkins, remainder in Ernest E. Hopkins or his heirs," and on the same date appellant appearing by and through her attorney of record, filed a demand for jury trial on the fair cash market value of the lands taken by the Government. On the trial of the case the jury fixed the value of the land "belonging to E. E. Hopkins and Ruth Idell Hopkins" at $2,800, and on the same date the court entered judgment on the verdict reciting that the fair, cash market value of the land owned by "Ruth Idell Hopkins, in full fee simple title" was $2,800.

On October 15, 1943, Clay McClure (formerly Mrs. E. E. Hopkins, and appellee here), with permission of the court, filed a petition in intervention in the condemnation proceedings alleging that on August 12, 1943, she had been granted a divorce from E. E. Hopkins in the District Court of Oklahoma County, and a judgment of $1,872.50, as alimony and attorney's fee. The petition sought to enforce a first and prior lien against the interest of E. E. Hopkins in the fund held by the Court Clerk under the condemnation judgment, on the grounds that the alimony judgment by its terms granted her a first and prior lien against the property of E. E. Hopkins. It was specifically alleged that E. E. Hopkins owned an interest in the real estate involved in the condemnation proceedings, having a value in excess of $2,000, and that he was entitled to receive as just compensation for his interest in the land taken, a sum of money in excess of $2,000.

When the matter came on for hearing on October 25, 1943, neither Ruth Idell Hopkins nor her father, E. E. Hopkins, appeared and the court found that they had been notified of the hearing, and adjudged them in default. Judgment was entered decreeing that E. E. Hopkins owned an "estate" in the land involved and that the alimony judgment was a first and prior lien against that interest, as represented by the condemnation fund. Accordingly, it ordered the Clerk to satisfy the judgment lien out of the $2,800 fund by issuing his voucher to Clay McClure in the sum of $1,872.50.

On the following November 27, appellant, Ruth Idell Hopkins, moved to vacate the order allowing the petition in intervention and to strike the same, on the grounds that neither she nor her attorney had notice of the motion for leave to intervene, nor was either of them served or furnished with a copy of the said petition; that the leave to intervene was granted upon an ex parte hearing without notice to, or knowledge of, appellant or her attorney of record, and that the petition should be stricken on the further grounds that upon its face Clay McClure could not have any lien or claim against the condemnation fund. On the same date the appellant moved to vacate the default judgment, alleging that "by the fraud of Clay McClure and her attorney, Curtis P. Harris" she did not receive notice of the hearing and was thereby prevented from appearing on October 25, 1943, when the default judgment was entered. She alleged that the land condemned by the Government, and represented by the condemnation fund, was a part of the homestead allotment, owned and occupied by her mother, a member of the Choctaw-Chickasaw Tribe of Indians, until shortly prior to her death in 1939, when she deeded the said land to her husband E. E. Hopkins in trust for appellant as a gift from the mother to her minor daughter. That she was at the time of the institution of the condemnation proceedings, and has ever since been, the owner of the fee simple title to the land condemned, and as such entitled to the just compensation for its taking. That E. E. Hopkins had never at any time during the pendency of the proceedings claimed or asserted any right, title or interest in or to the property or to the condemnation fund, and had no interest therein against which a judgment lien could attach.

After a full hearing conducted on January 17, 1944, and in pursuance of a memorandum opinion filed the following May 20, the trial court on June 5, 1944, by formal order, denied the motion to vacate and this appeal is from that order and not the default judgment.

On appeal, appellant challenges: (1) the validity of the court's order of October 15, 1943, allowing the appellee to intervene in the condemnation proceedings; (2) the validity of the order of December 15, 1942, fixing title to the lands taken, contending that the judgment of September 21, 1943, on the jury verdict was conclusive of that issue; (3) the payment of $1,872.50, out of funds on deposit in the registry of the court to Clay McClure, as void for the reason that the court did not ascertain the value of the estate if any, owned by E. E. Hopkins in the land condemned, as represented by the $2,800 in the registry of the court;¹ and (4) the default judgment of October 25, 1943, as void on the grounds that it was obtained by fraud of the intervenor and her attorney.

All of the points relied upon and complained of directly attack the validity of the default judgment of October 25, 1943. An aggrieved party may prosecute a timely appeal from a default judgment, but the distinct and positive averments in the complaint, upon which the judgment is rendered, are conclusively binding upon the appellant, and insofar as the judgment conforms to the complaint, it is unassailable on appeal. Thomson v. Wooster, 114 U.S. 104, 5 S.Ct. 788, 29 L.Ed. 105; Ohio Central Railroad Company v. Central Trust Co., 133 U.S. 83, 10 S.Ct. 235, 33 L.Ed. 561; City of Winter Haven Florida v. Gillespie, 5 Cir., 84 F.2d 285; Freeman on Judgments, Section 1298, p. 693.

But as we have seen, this appeal is not from the default judgment and ordinarily an order denying a motion to vacate a default judgment is not a final and appealable order within the meaning of 128(a) of the Judicial Code, 28 U.S.C.A. § 225(a). Taylor v. United States, 10 Cir., 145 F.2d 641; State Tax Commission of Utah v. United States, 10 Cir., 136 F.2d 903; Crutcher v. Joyce, 10 Cir., 134 F.2d 909; Glinski v. United States, 7 Cir., 93 F. 2d 418. However, where as here the motion to vacate attacks the judgment for lack of service on the movant or for fraud in its procurement,...