Rhodes v. Houston, Civ. No. 01322

• Court: United States District Courts. 8th Circuit. United States District Court of Nebraska
• Citation: 258 F. Supp. 546
• Docket Number: 01682,Civ. No. 01322,01784.
• Parties: Paul E. RHODES, Plaintiff, v. Norval HOUSTON et al., Defendants. Paul RHODES, Plaintiff, v. Clarence A. H. MEYER et al., Defendants. Paul RHODES, Plaintiff, v. Richard M. VAN STEENBERG et al., Defendants.
• Decision Date: 08 September 1966

258 F. Supp. 546

Paul E. RHODES, Plaintiff, v. Norval HOUSTON et al., Defendants.

Paul RHODES, Plaintiff, v. Clarence A. H. MEYER et al., Defendants.

Paul RHODES, Plaintiff, v. Richard M. VAN STEENBERG et al., Defendants.

Civ. Nos. 01322, 01682, 01784.

United States District Court D. Nebraska.

September 8, 1966.

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Paul Rhodes (or Paul E. Rhodes), Elwood, Kan., or Bridgeport, Neb., or Howe, Neb., plaintiff in all cases, appearing pro se.

Clarence A. H. Meyer, Atty. Gen. of Nebraska, Robert A. Nelson, Sp. Asst. Atty. Gen. of Nebraska, John R. Baylor, Baylor, Evnen, Baylor & Urbom, Lincoln, Neb., and James M. Murphy, Omaha, Neb., appearing severally for sundry defendants.

Clarence A. H. Meyer, Robert A. Nelson, J. Arthur Curtiss, and H. B. Evnen, Lincoln, Neb., and James L. Macken, Bridgeport, Neb., appearing severally pro se, as parties defendant in one or more of the identified cases.

MEMORANDUM

VAN PELT, District Judge, and DELEHANT, Senior District Judge, joining in all rulings now announced.

The plaintiff's correct post-office address, place of residence and citizenship (with respect to the state thereof) are uncertain. At all times when the cases numbered 01322, 01682 and 01784 were severally instituted he resided in Nebraska, and either at Howe, or at Bridgeport, therein, and was a citizen of Nebraska. Later, he has claimed in other litigation by him instituted and conducted in this court, that he has removed to and resides in Elwood, Kansas, and thereby has been and is a citizen of Kansas. In the doubt by him thus created, the court is indicating all of his known possible places of residence, with a view to the assurance of his receipt of notice of the present ruling, upon any residentiary hypothesis.

The cases identified in the caption, supra, are three items of litigation instituted by the same plaintiff, which have heretofore been determined by this court through rulings, all of which have been formally reported, infra, and have been affirmed by the United States Court of Appeals, Eighth Circuit, infra, of whose several affirming judgments the Supreme Court of the United States has denied review through writs of certiorari sought by the plaintiff, infra. Those cases are reported under the following identifying titles:

Case numbers in this court. Titles and Citations 01322 Rhodes v. Houston, et al. (D.C.Neb.) 202 F.Supp 624, Aff'd November 29, 1962 (8 Cir.) 309 F.2d 959, cert. den. February 18, 1963, 372 U.S. 909 83 S.Ct. 724, 9 L.Ed.2d 719; 01682 Rhodes v. Meyer, et al. (D.C.Neb.) 225 F.Supp 80, Aff'd August 5, 1964 (8 Cir.) 334 F.2d 709 cert. den. November 16, 1964, 379 U.S. 915, 85 S.Ct. 263, 13 L.Ed.2d 186; and 01784 Rhodes v. Van Steenberg, et al. (D.C.Neb.) 225 F.Supp. 113, Aff'd August 5, 1964 (8 Cir.) 334 F.2d 709, cert. den. November 16, 1964, 379 U.S. 915, 85 S.Ct. 263, 13 L.Ed.2d 186.

In its rulings, and in the entry of its judgments, in those several cases, this court acted, in case numbered 01322, by and through Judge Van Pelt, one of its judges in active status, and in each of cases severally numbered 01682 and 01784, by and through Judge Delehant, a senior district judge, by competent authority duly and regularly assigned to this judicial district for active service. Those judges have been prompted to join for this court in taking submission of, and in making determination upon, the present post judgment challenges against the judgments in the foregoing several cases. They are pursuing that course, first, because of the common historical background of all of the three cases; secondly, by reason of the vital similarity of the basic allegations in the three separate complaints of the single plaintiff, by whom all of them were instituted; and thirdly, on account of the practical identity of the plaintiff's pleadings now directly confronting this court in all of the three cases.

This court does not, at the present point, reiterate in detail its reflection of the averments of the several complaints in its cases numbered respectively 01322, 01682 and 01784. Those averments and their settings have been adequately, in fact, repetitively, disclosed and discussed in the reported memoranda announcing its rulings in the several cases, supra. Their recollection in case No. 01322 bears the approval of the Court of Appeals, Eighth Circuit, through its express adoption of this court's opinion in that case, Rhodes v. Houston (8 Cir.) 309 F.2d 959. Moreover, though with substantial selective restatement, their recollection in cases numbered 01682 and 01784, is also approved by the Appellate Court, Rhodes v. Meyer (8 Cir.) No. 17,580, and Rhodes v. Van Steenberg, (8 Cir.) No. 17,588, 334 F.2d 709. Accordingly, for an understanding of the allegations of the several original complaints, this court, without detailed repetition, now refers to its own earlier reported rulings, and those of the Court of Appeals, Eighth Circuit, vide supra.

On September 27, 1965, the plaintiff with proof of service, filed in this court in each of the three cases an essentially identical and indistinguishable MOTION TO VACATE JUDGMENT (filing 89 in Case No. 01322, filing 39 in Case No. 01682, and filing 20 in Case No. 01784). Each such motion demanded the vacation of the judgment made and given by this court in the case in which it was filed, and asked leave to amend the complaint by the addition to it of an exactly phrased and identical new paragraph. To provide a reflection of the substance and asserted grounds of the motion, and of the proposed and requested amendment of the several complaints, the following quotation is taken from filing 20 in Case No. 01784:

"Comes now the plaintiff in the above entitled action, and moves the court, pursuant to Rule 60(b) to grant relief from the Judgment and the order of the Court herein filed on December 16, 1963 and to permit this plaintiff to amend his complaint by attaching a paragraph thereto which is hereinafter set forth. The plaintiff moves the court to vacate the judgment and permit the amendment for the reason excusible (sic) neglect, suprise (sic), misrepresentation and misconduct of adverse parties. That the judgment is void and for the further reason that said judgment is unjust and not equitable and are being used by the defendants and others as a claim of res judicate (sic) and stare decisis, when in truth and in fact the District Court of Morrill County, Nebraska in Case No. 4819, State of Nebraska vs. Rhodes had no jurisdiction of the defendant, Rhodes, on November 21, 1960 for the following reason, to-wit: This plaintiff, in said action case 4819, on November 21, 1960 filed Motion for Continuance which was denied by the Court and after the denial of said continuance no notice was given this plaintiff that his application for continuance had been denied and this plaintiff was given no opportunity to be present and defend after the denial of his motion for continuance. And immediately and forthwith after the denial of Motion for Continuance on November 21, 1960, case 4819 proceeded to trial, in the absence of this plaintiff, in absentia and continued through sentencing in the absence of this plaintiff. At that time and immediately after the denial of the Motion for Continuance the Court in said case 4819 lost jurisdiction of the person of this plaintiff, and Judge Van Steenberg was without jurisdiction of this plaintiff at the time he received additional evidence on the merits of the contempt on November 21, 1960 and sentenced this plaintiff. The Judgment in case 4819 of November 21, 1960 is void for want of jurisdiction of the person of this plaintiff, and for said reason the Judgment of this Court filed December 16, 1963 should be set aside and vacated. That the plaintiff be allowed to attach the following paragraph to his complaint, to-wit:

"That on November 21, 1960 in the absence of this plaintiff in case 4819, State of Nebraska vs. Rhodes, District Court of Morrill County, Nebraska this plaintiff caused Motion for Continuance to be filed in his absence. That this plaintiff was not present in Court on said day and was not represented by Counsel, and was not under bail or bond, and further was not within Jurisdiction of the Court on said day. That on November 21, 1960 the Court denied this plaintiff's Motion for Continuance. The Court nor none of its officers on November 21, 1960 gave this plaintiff any notice that his Motion for Continuance had been denied; that this plaintiff, the accused was not given due notice of his denial of Motion for Continuance on November 21, 1960. The accused was given no opportunity to be present and defend on November 21, 1960 after his motion for continuance had been denied. The Court forthwith, without notice to this plaintiff, the accused, proceeded to trial on the merits in said case 4819 immediately after the denial of the motion for continuance; in the absence of this plaintiff, the accused, and at a time he was not present in court and not represented by counsel. The accused was not present, was not faced by his accusers or witnesses, the court rendered judgment and passed sentence in the absence of the accused. Oral Argument is requested on this Motion."

It may be understood that the motion thus filed in each of the other two cases was and is indistinguishable, mutatis mutandis, from the one just cited in respect of all of its material language thus quoted.¹

Concerning the request for oral argument, supra, it is here noted that oral argument in open court, in Lincoln, Nebraska, on October 19, 1965 at 9:00 o'clock A.M., pursuant to due notice, was presented upon the motion theretofore filed in the three several cases, and each of them.

But on November 2, 1965, in each of the three cases, the plaintiff also filed a pleading essentially identical in all of these cases, entitled "SUPPLEMENT TO MOTION TO VACATE JUDGMENT,"...