Jones v. Jones, 11231.

• Decision Date: 06 December 1954
• Docket Number: No. 11231.,11231.
• Citation: 217 F.2d 239
• Parties: Henry C. JONES and Virgie Jones, Plaintiffs-Appellees, v. Celessie JONES, also known as Celeste Jones, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

217 F.2d 239 (1954)

Henry C. JONES and Virgie Jones, Plaintiffs-Appellees, v. Celessie JONES, also known as Celeste Jones, Defendant-Appellant.

No. 11231.

United States Court of Appeals Seventh Circuit.

December 6, 1954.

John A. Hyde, Richard J. Deutsch, Marshall J. Schwarzbach, Chicago, Ill., for appellant.

Richard K. Cooper, Radcliffe O. Woolford, Chicago, Ill., for appellees.

Before DUFFY, Chief Judge, and MAJOR and LINDLEY, Circuit Judges.

MAJOR, Circuit Judge.

On April 14, 1953, plaintiffs commenced an action against the defendant, pursuant to Section 205 of the Housing and Rent Act of 1947, as amended, 50 U.S.C.A.Appendix, § 1895, to recover treble damages for rent overcharges. As shown by the sworn return of a Deputy Marshal, service of process was effected on the defendant in the following manner: "Served this writ together with copy of complaint on the within named Celessie Jones, a/k/a Celeste Jones, by leaving copies thereof for her at 851 East 63rd Place, Chicago, Illinois, her usual place of abode, with her daughter, an adult member of her family, and at the same time informed her of the contents thereof, this 27th day of April, A.D. 1953." No answer, appearance or other responsive pleading was filed by the defendant within the prescribed time and, on June 30, 1953, judgment by default was entered against her.

On December 18, 1953, defendant, under Rule 60(b) (4) of the Federal Rules of Civil Procedure, 28 U.S.C.A.,¹ moved the court in which the default judgment had been entered to vacate and set aside the same on the ground that she had not been served with process and as a consequence the default judgment was a nullity. In support of said motion, she filed three affidavits, one by herself, and one by each of her daughters, Minnie Pearl and Lorraine. In her own affidavit she set forth the return of service of summons as made by the Deputy Marshal and alleged, "The said return of service of summons is false and erroneous in that Defendant was not served with a copy of the summons and complaint in this case, nor was her daughter or anyone else residing in her usual place of abode served with said copies at the time and place therein stated or any time or place." The affidavits by the two daughters are exactly the same, except one stated that she was 17 years of age and the other that she was 15 years of age. Each alleged that the service of summons was false and erroneous and that the affiant was not served with a copy of the summons and complaint. Each recited that the affiant was absent from the premises designated in the Marshal's return from 7:30 a. m. until midnight on April 27, 1953 (the date the summons was served, as shown by the Marshal's return).

Plaintiffs, in opposition to said motion, filed affidavits by their lawyers, Cooper and Woolford. The former alleged that on about the 28th day of April, 1953, "he received a telephone call from one who identified herself as, Celeste Jones; she told this affiant that she had received some papers from the United States Marshal and that she wondered what this affiant had to do with having such papers served upon her; that she had not charged the tenants in her building more than was fair and that they got a `good deal'; that further they had moved away and that the case ought to be dropped." The affiant further stated that defendant later called him on two or three occasions and discussed matters relative to the case. The affidavit of Woolford corroborated that of Cooper in that it stated that on a separate telephone he heard the conversation between Cooper and the defendant.

On this state of the record rather extensive briefs were filed by each of the parties, and the question for decision was submitted to the court. On May 14, 1954, the court entered its order denying the relief sought by defendant's motion. From this order of denial the appeal comes to this court.

Numerous cases support the view that a motion to vacate a judgment under Rule 60(b) is addressed to the sound legal discretion of the court and that its determination will not be disturbed upon appeal except for an abuse of discretion. Elgin Nat. Watch Co. v. Barrett, 5 Cir., 213 F.2d 776, 780; Independence Lead Mines Co. v. Kingsbury, 9 Cir., 175 F.2d 983, 988; Western Union Telegraph Co. v. Dismang, 10 Cir., 106 F.2d 362, 364, and Bush v. Bush, 61 App.D.C. 357, 63 F.2d 134, 135. Defendant concedes this general rule but insists that the court abused its discretion because of its failure to hear testimony for the purpose of resolving the conflict between the parties as to the factual situation. A sufficient answer to that contention is that no request was made for the privilege of offering oral testimony; in fact, complaint that such testimony was not heard is made for the first time in this...