Schwarz v. Thomas
| Decision Date | 28 April 1955 |
| Docket Number | No. 12489,12490.,12489 |
| Citation | 222 F.2d 305 |
| Parties | Jack SCHWARZ and Irwin Schwarz, t/a Jack Schwarz and Son, Appellants, v. William M. THOMAS, Appellee. Jack SCHWARZ and Irwin Schwarz, t/a Jack Schwarz and Son, Appellants, v. Frances Wood THOMAS, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Arthur L. Willcher, Washington, D. C., with whom Mr. Bernard Shankman, Washington, D. C., was on the brief, for appellants.
Mr. Jeff Busby, Washington, D. C., with whom Mr. Jeff Busby, Jr., Washington, D. C., was on the brief, for appellees.
Before BAZELON, FAHY and BASTIAN, Circuit Judges.
On November 24, 1952, appellants (plaintiffs) filed a complaint in the District Court against appellees (defendants) to recover the sum of $3,914.58, with interest, costs and attorneys' fees, as moneys due and owing them by defendants, represented in part by promissory notes and in part on open account. In the complaint plaintiffs averred that the defendants were non-residents of the District of Columbia. The complaint and summons were served personally in the District of Columbia on the defendant, William M. Thomas, on February 18, 1953, under circumstances hereinafter set forth. On the same day the complaint and summons addressed to Frances Wood Thomas were served upon Jeff Busby, Jr., a member of the bar of the District Court, who was representing her in connection with litigation then being heard in the District Court, said litigation being entirely separate and distinct from the present proceedings. Mr. Busby the same day signed a paper reading as follows: "Accepted Service on Behalf of the Within Named Defendant Frances Wood Thomas this 18 of Feb 1953." Thereafter, as hereinafter set forth, attacks were made on default judgments obtained under such services.
The summons and complaint were served on William M. Thomas, who, as above indicated, was a non-resident of the District of Columbia, while he was in the District of Columbia in response to a summons of the District Court in a case which was actually on trial in Judge Tamm's court. He did nothing after the service; and, on March 20, 1953, a default against him was entered in the instant case by the Clerk. On September 9, 1953, the District Court granted a motion for judgment against him. Still nothing was done by said defendant until, on August 10, 1954, nearly a year later and after there had been a garnishment issued on the judgment, he filed a motion to quash the said service and to set aside the judgment entered against him on the ground that the service was illegal, it being claimed that service was had while he was in the District of Columbia in response to a summons and defending an action in the District Court. On October 5, 1954, the District Court quashed the service of summons on this defendant and set aside the judgment of September 9, 1953, against him. This appeal followed.
It has long been settled, by the great weight of authority, that a non-resident who is in attendance as a witness at a trial in a state other than that of his residence is exempt or privileged from service of process while in that other jurisdiction attending the trial and while en route to and from court. Also according to the great weight of authority, a non-resident party litigant is exempt or privileged from service of process while in attendance upon the trial of his case and while en route to and from court, and this doctrine is supported by the federal cases. See Stewart v. Ramsay, 242 U.S. 128, 37 S.Ct. 44, 61 L.Ed. 192; Page Co. v. MacDonald, 261 U.S. 446, 43 S.Ct. 416, 67 L.Ed. 737; Church v. Church, 50 App. D.C. 239, 270 F. 361; Hale v. Wharton, C.C., 1896, 73 F. 739.
All of this is seemingly admitted by the appellants, who claim, however, that the so-called immunity from service of process is voidable and not void, and that in order that the immunity be effective it must be promptly and properly asserted. In other words, it is claimed that the exemption, privilege or immunity from service of process in such cases is regarded as a personal exemption, privilege or immunity, which may and will be waived if not claimed promptly by the person in whose favor it runs in some proper way, such as a motion to quash, plea in abatement, or the like. The Federal authorities sustain this position.1
Many state courts have taken the same position.2
We, therefore, conclude that the service on the defendant, William M. Thomas, was voidable; but that the personal exemption or privilege was waived by the inaction of said defendant for over a year after the entry of judgment, which under the circumstances of this case we hold to be unreasonable.
As above stated, Jeff Busby, Jr., a member of the bar of the District Court, on February 18, 1953, accepted service of the summons and complaint on behalf of Frances Wood Thomas. In due course, default against her was entered by the Clerk on March 20, 1953; and, on September 9, 1953, the District Court entered judgment against her by default for the amount claimed, with interest, costs and attorney's fee. On August 10, 1954, nearly a year later, after a garnishment had been served on one James L. Thomas, the said Frances Wood Thomas filed a motion, accompanied by a supporting affidavit, to quash the service so made on her on February 18, 1953, and to set aside the default judgment entered on September 9, 1953. The grounds of the motion were that she was not at the time of the filing of the complaint, nor has she been since that time, a resident of the District of Columbia; that she was never summoned as a defendant in the instant proceedings; and that she "never authorized Jeff Busby, Jr. who had and was representing her in other litigation to accept service of summons for her, nor has she ever ratified such acceptance of service of summons, nor has she ever filed any pleading in said action or otherwise submitted herself to the jurisdiction of the Court in this case." On October 20, 1954, the District Court quashed the service of summons on this defendant, and set aside the judgment of September 9, 1953, against her. This appeal followed.
This is a situation different from that in which the defendant, William M. Thomas, was involved. Frances Wood Thomas was not served in the District of Columbia and, according to her uncontradicted affidavit, she never authorized or ratified acceptance of the service of process. The rule is clear that it must appear that any agent who accepts service must be shown to have been authorized to bind his principal by the acceptance of process and, further, that the authority to accept such service cannot be shown by the extra-judicial statements of the attorney. This is an elementary law of agency.
In Stone v. Bank of Commerce, 174 U.S. 412, 19 S.Ct. 747, 751, 43 L.Ed. 1028, the court held that an attorney, in his capacity merely as such, has no power to make any agreement for his client before a suit has been commenced, or before he has been retained to commence one; and if, under such circumstances, he assumes to act for his principal, it must be as agent and his actual authority must appear. In Stone it appeared that the Revised Statutes of Kentucky provided, among other things, that it should be the city attorney's duty "`to prosecute and defend all suits for and against the city, and to attend to such other legal business as may be prescribed by the general council.'" Rev.St.Ky. § 2909. The court said, 174 U.S. at page 423, 19 S.Ct. at page 751:
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U.S. v. $184,505.01 in U.S. Currency
...639 (7th Cir.1971) (service upon attorney was ineffective where attorney had not been appointed for that precise task); Schwarz v. Thomas, 222 F.2d 305 (D.C.Cir.1955) (attorney representing defendant in another litigation has no authority to accept service of process in a separate suit); Se......
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...to MOFCOM, Commerce does not provide any notice to the interested party on how to rebut the presumption. See Schwarz v. Thomas, 222 F.2d 305, 308 (D.C.Cir.1955) ("any agent who accepts service must be shown to have been authorized to bind his principal by the acceptance of process"), United......
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Adams v. Bell
...F.Supp. 441, 443-448 (W.D.La.1962). Immunity from process is waived if not timely asserted by the party claiming it, Schwarz v. Thomas, 222 F.2d 305 (D.C.Cir.1955), and the Adams plaintiffs have never requested immunity by special appearance. In any event, courts grant immunity only if it s......
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Croy v. Skinner, Civ. A. No. 75-1077.
...upon a purported agent is insufficient unless the agent is specifically authorized to accept service, e. g., Schwarz v. Thomas, 95 U.S.App.D.C. 365, 222 F.2d 305 (D.C.Cir. 1955); however, the real question in the present circumstances is whether an unsworn letter sufficiently controverts sw......