State of Missouri v. Fidelity & Casualty Co.

• Citation: 107 F.2d 343
• Decision Date: 08 November 1939
• Docket Number: No. 11434.,11434.
• Parties: STATE OF MISSOURI ex rel. and to Use of DE VAULT v. FIDELITY & CASUALTY CO. OF NEW YORK.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

107 F.2d 343 (1939)

STATE OF MISSOURI ex rel. and to Use of DE VAULT v. FIDELITY & CASUALTY CO. OF NEW YORK.

No. 11434.

Circuit Court of Appeals, Eighth Circuit.

November 8, 1939.

COPYRIGHT MATERIAL OMITTED

Oscar B. Elam, of Kansas City, Mo., for appellant.

Ben W. Swofford, of Kansas City, Mo. (Mitchel J. Henderson and Thomas E. Deacy, both of Kansas City, Mo., on the brief), for appellee.

Before THOMAS and VAN VALKENBURGH, Circuit Judges, and DEWEY, District Judge.

DEWEY, District Judge.

Suit was brought by the above named relator against the defendant as surety on a fidelity bond given by James L. Williams, sheriff, for certain acts of the sheriff, his deputies and others, which relator alleges constituted a conspiracy resulting in his injury and damage.

The trial court sustained a motion to dismiss on the ground that the amended complaint did not state facts upon which relief could be granted. From this order and for errors which it is alleged were committed by the court on matters of procedure, the relator, whom we will refer to as the plaintiff, has appealed.

Plaintiff contends that the record discloses, and as a matter of substantive right, he is entitled to a default against the defendant and a jury to assess his damages.

On October 15, 1938, the plaintiff filed an amended complaint which is here for review.

On October 22, 1938, the defendant filed a demurrer charging that this complaint did not contain facts sufficient to constitute a cause of action.

On October 31, 1938, the plaintiff filed a motion to strike this demurrer and a motion for an interlocutory judgment by default.

On November 4, 1938, the District Court sustained the motion to strike the demurrer and denied plaintiff's request for a default judgment and granted the defendant five days to plead.

On November 9, 1938, the plaintiff filed a motion to set aside the order of November 4, 1938, and on the same date the defendant filed its answer to the amended complaint and separately a motion for judgment on the pleadings.

The motion for judgment on the pleadings charged, among other things that the complaint does not state facts upon which relief can be granted and does not state facts which constitute any cause of action against the defendant. This motion was sustained and plaintiff was granted ten days to file another amended complaint; and plaintiff, having failed and refused to further plead, the court ordered the action dismissed with prejudice.

It is the theory of the plaintiff that as the new Rules of Civil Procedure, 28 U.S. C.A. following section 723c, abolished demurrers, the demurrer which was stricken did not constitute a pleading and hence no pleading was on file at the time he filed his motion for an interlocutory judgment and he is entitled to a default and to have a jury called to assess damages on such default.

There was a demurrer to the original complaint which was sustained. Between the time of that order and the filing of the demurrer to the amended complaint the new Rules of Civil Procedure for federal courts had become in force. The second demurrer contained the charge that the amended complaint did not state facts upon which relief could be granted. As the defendant had already appeared, a default judgment could only be obtained by application to the court. Rule 55 (b) (2). The only difference between the demurrer and a motion to dismiss was therefore in the designation of the pleading and this difference was a matter of form rather than of substance. The circumstances did not show any lack of good faith and had the court entered a judgment by default at the time he struck the demurrer from the record, he would no doubt have set the default aside under these circumstances.

There is nothing in the rules to uphold plaintiff's contention, while on the other hand Rule 55 provides in effect that defaults to be effective must be applied for and granted by the court. That the granting of a default is discretionary is indicated by Rule 55 (c) which authorizes the court to set aside an entry of default on a showing of good cause.

"The default of a party to an action is always a harsh measure, and no party should ever be defaulted, unless the grounds upon which such default is authorized are clearly and authoritatively established and are in such clear and certain terms that the party to be defaulted can know, without question, that he is subject to default if he does not act in a certain manner." Janoske v. Porter, 7 Cir., 64 F.2d 958, 960. 34 C.J. p. 147, § 349.

Nor is there any merit in plaintiff's contention that the court was without jurisdiction to rule upon the motion to dismiss contained in the motion for judgment on the pleadings as such procedure is expressly authorized by 12 (h) of the Rules of Civil Procedure, which contains the following:

"A party waives all defenses and objections which he does not present either by motion as hereinbefore provided or, if he has made no motion, in his answer or reply, except (1) that the defense of failure to state a claim upon which relief can be granted * * * may also be made * * by motion for judgment on the pleadings * * *."

We agree with the plaintiff that the action of the court in dismissing plaintiff's petition on the ground that it failed to state a claim upon which relief could be granted was a denial of plaintiff's motion for an order setting aside the order of November 4, 1938; but there was no error in the court inferentially overruling this motion of the plaintiff to set aside the order, nor has plaintiff shown the defendant to be in default.

A more serious question is presented as to whether in the amended complaint are facts which constitute any cause of action against the defendant.

It is unnecessary to set out all of the amended complaint. Plaintiff alleges therein that the condition of the sheriff's bond provided that "if the said James L. Williams shall faithfully perform his duties then this obligation to be void, otherwise to remain in full force and effect." And after jurisdictional grounds he alleges that James L. Williams was the sheriff of Jackson County, Missouri, and that one Clark Johnson was deputy sheriff and that said deputy sheriff, together with one Thomas E. Glynn, a county investigator, and other evil minded persons are and at all times mentioned and referred to have been in a scheme and conspiracy to commit an offense against the laws of the State of Missouri by causing and procuring divers and sundry citizens of Missouri to be unlawfully deprived of their liberties; and specifically as to this charge, he states that one Ruth McLaughlin was unlawfully seized and unlawfully imprisoned without notice of hearing or any due process of law, and in Paragraph VI of his complaint that —

"he was attorney and counselor for said Ruth McLaughlin in said habeas corpus proceedings and well known to be such to said James L. Williams, Sheriff, and to said Johnson, Deputy Sheriff, under appointment of said Williams; and on a day in the month of May, A. D., 1937, when some steps in said habeas corpus proceeding were to be taken in said Kansas City Court of Appeals, Relator was at the Court House of Jackson County, Missouri, where said Kansas City Court of Appeals convenes and holds court, and was awaiting the arrival of the Judge and Commissioners of the Court, and Relator's said client was there and said Clark Johnson was there and a large number of other persons were present; and under and in pursuance of said scheme and conspiracy and under color of his said office of deputy sheriff, and under authority of said Sheriff James L. Williams, said Clark Johnson did then and there publicly in the presence, sight and hearing of many people and in a commanding and threatening manner, and without warrant or other lawful authority, place Relator under arrest and deprive Relator of his liberty and compelled Relator to stand still and compelled Relator to throw up the hands of Relator high above the head of Relator and to keep them so while submitting the person of Relator to the rough manhandling of said deputy sheriff Johnson under the false pretense of said Johnson that he was searching the person of Relator for dangerous and deadly weapons feloniously concealed upon the person of Relator, although Relator was not guilty of such or any other offense and said Johnson and said Williams and said co-conspirators at all times had actual notice of the said innocence of Relator.

"Relator states that said Johnson would not have so conducted himself toward Relator except under color of his office of deputy sheriff.

"VII. Relator states that in furtherance of said scheme and conspiracy plaintiff was thereafter arrested September 14, 1937, on a warrant issued by a justice of the peace on a charge of disturbing the peace and was in custody of said James L. Williams, Sheriff, and his deputy sheriffs and his Jailor and was at all times able, ready and willing to make bail for his release from custody and tendered such bail and under and in pursuance of said scheme and conspiracy said James L. Williams and his deputy sheriffs at all times denied Relator opportunity to make bail and so unlawfully held Relator in custody for about thirty days in the jail of Jackson County, Missouri, at Kansas City, until said proceeding against Relator was dismissed.

"VIII. Relator further states that September 14, 1937, under and in pursuance of said scheme and conspiracy a proceeding was instituted in the County Court of said Jackson County, Missouri, the object and general purpose of which was to have Relator adjudged by said County Court to be insane and committed to one of the Missouri State Hospitals, and said James L. Williams and his deputy sheriffs were in custody of the body of Relator under authority of the said warrant of the said justice of the peace; and under and in pursuance of said scheme and conspiracy and without lawful authority and against the will of...