Rooks v. American Brass Company, 13570.

• Decision Date: 11 February 1959
• Docket Number: No. 13570.,13570.
• Citation: 263 F.2d 166
• Parties: Arthur J. ROOKS, Appellant, v. AMERICAN BRASS COMPANY, a Connecticut corporation, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

263 F.2d 166 (1959)

Arthur J. ROOKS, Appellant, v. AMERICAN BRASS COMPANY, a Connecticut corporation, Appellee.

No. 13570.

United States Court of Appeals Sixth Circuit.

February 11, 1959.

Wilfrid L. Burke, Detroit, Mich., for appellant.

Robert A. Jenkins, Detroit, Mich., William H. Granse and Hill, Lewis, Andrews, Granse & Adams, Detroit, Mich., on the brief, for appellee.

Before ALLEN, Chief Judge, and SIMONS and MARTIN, Circuit Judges.

PER CURIAM.

This appeal attacks an order of the District Court overruling a motion to set aside a default and a default judgment rendered against defendant.¹ The case arises out of the following facts which are set forth in a verified motion to vacate the default and the default judgment, supported by three affidavits. Plaintiff filed an unverified response to the motion in which plaintiff neither admitted nor denied a number of controlling facts asserted in defendant's motion.

The judgment by default against defendant was entered in an action filed by plaintiff for collection of an alleged guaranty by defendant of debts to the extent of $60,000 asserted to be owed to plaintiff by Commercial Brass Company, hereinafter called Commercial. Defendant, Vice President of Commercial, signed the guaranty. In its action against defendant plaintiff alleged that it had delivered materials to Commercial for which Commercial owed plaintiff $146,165.82 and that $60,000 of this sum is covered by the alleged guaranty.

The action was filed May 2, 1957, and judgment by default was entered December 27, 1957. Motion to set aside the default and default judgment and reopen the case for the taking of proofs was timely filed January 15, 1958, and denied by the District Court in a summary order which made no findings of fact and announced no conclusions of law.

The following facts are alleged in defendant's verified affidavit and are supported by affidavits of defendant's wife, Ann Rooks, and Edwin Dowd, treasurer of Commercial. During the period from May, 1957, to January, 1958, that is, substantially the period between the filing of the action and the default judgment, defendant was suffering with meningitis, having been confined for many weeks in the Jennings Hospital, Detroit. During this time business matters were not called to defendant's attention because of his precarious illness. Dowd stated under oath that defendant had been seriously ill from May to December, 1957, and was unable to handle any business. All of defendant's work previously done by defendant for Commercial was turned over to Dowd.

While service of process was made at defendant's residence on July 31, 1957, by delivery of the summons and complaint to defendant's wife, because of defendant's dangerous condition Mrs. Rooks did not inform defendant that she had been given a summons and complaint. She turned the papers over to Dowd under the mistaken belief that the litigation related to Commercial. Dowd's affidavit set forth that, due to the fact that the sum alleged to be due plaintiff from Commercial was the same figure in the instant suit as in the bankruptcy proceedings recently instituted by plaintiff against Commercial, Dowd was under the mistaken impression that the papers related to a suit against Commercial. Defendant's affidavit declares that he was never personally served with a copy of the summons and complaint herein and the record shows that the service secured was not personal service but was residence service through delivery to defendant's wife in accordance with Federal Rules of Civil Procedure, rule 4(d) (1), 28 U.S.C.

Rule 55(c) of the Federal Rules of Civil Procedure provides that "For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b)." Rule 60(b) provides "On motion and upon such terms as are just, the court may relieve a party * * * from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; * * * (4) the judgment is void; * * * (6) any other reason justifying relief from the operation of the judgment."

We think the circumstances set forth in the affidavits establish the existence of several grounds for vacating the default and the default judgment in accordance with Rule 55(c) and Rule 60 (b). It is averred and not denied in any sworn pleading or response, that both defendant's wife and Dowd, to whom the summons, and complaint were given because of an erroneous impression of fact, namely, that the action against defendant asserted a claim against Commercial, combined with the crucial importance of not intensifying defendant's serious illness, failed to apprise him of the action against him. This was a mistake of fact. That Dowd, particularly because of his relationship to defendant as successor in carrying on his work at Commercial,...