Stevirmac Oil Gas Co v. Dittman

• Citation: 245 U.S. 210,62 L.Ed. 248,38 S.Ct. 116
• Decision Date: 10 December 1917
• Docket Number: No. 131,131
• Parties: STEVIRMAC OIL & GAS CO. v. DITTMAN et al
• Court: U.S. Supreme Court

245 U.S. 210

38 S.Ct. 116

62 L.Ed. 248

STEVIRMAC OIL & GAS CO.

v DITTMAN et al.

No. 131.

Submitted Oct. 22, 1917.

Decided Dec. 10, 1917.

Messrs. George S. Ramsey, Edgar A. de Meules, and Malcolm E. Rosser, all of Muskogee, Okl., for plaintiff in error.

Mr. Jesse H. Wise, for defendant in error.

Mr. Justice DAY delivered the opinion of the Court.

On October 4, 1913, the defendants in error brought suit in the United States District Court for the Eastern District of Oklahoma against the Stevirmac Oil & Gas Company and Virgil Hicks to recover a money judgment. Process was issued naming November 3, 1913, as answer date. On October 15, 1913, the marshal made return certifying that he had delivered a copy of the summons to Virgil Hicks, treasurer, in person, and that the other defendant named was not served. On November 25, 1913, the court ordered the marshal to amend the return to conform to the facts, and thereupon the marshal amended his return so as to certify that he had served the Stevirmac Oil & Gas Company by leaving a copy of the summons with Virgil Hicks personally and as treasurer of the company at Sapulpa, Oklahoma, in said district, on October 13, 1913, the president, chairman of the board of directors, or other chief officer not being found in the district, and Virgil Hicks being in charge of the place of business of the corporation.

On December 1, 1913, the court rendered judgment by default against the Stevirmac Oil & Gas Company. Under the laws of Oklahoma service can be made upon a corporation's treasurer only when the president, chairman of the board of directors, or other chief officer cannot be found in the jurisdiction, and this fact must be stated in the return. Cunningham Commission Co. v. Rorer Mill & Elevator Co., 25 Okl. 133, 105 Pac. 676.

About eighteen months after the default judgment the Stevirmac Oil & Gas Company filed an application to set aside the default judgment; it was averred that the Stevirmac Oil & Gas Company, a corporation, was named in the summons issued with Virgil Hicks; that on October 13, 1913, the United States Marshall delivered to said Virgil Hicks at Sapulpa, Oklahoma, a copy of the summons; that at that time H. H. McFann was the president of the corporation and was in the town of Sapulpa, was well known therein and had a regular place of business and residence in said town; that Virgil Hicks was not in charge of the place of business of the defendant corporation; that at the time of the delivery of the copy of the summons to him the marshal did not tell or inform him in any way that the copy was for the defendant, the Stevirmac Oil & Gas Company, or that said delivery was intended for service upon said defendant corporation, and that Virgil Hicks understood and believed that the service was upon him individually; that the United States Marshal inquired of Virgil Hicks for the name of the president of the defendant corporation and where he could be found, and was told that H. H. McFann was the president of the corporation, was then in Sapulpa, Oklahoma, wherein he could be found; that this constituted all the service of summons made in the case; that no service was ever made on McFann or upon the Stevirmac Oil & Gas Company; that on October 15, 1913, the marshal made return certifying that he had delivered a copy of the return to Virgil Hicks, treasurer, in person at Sapulpa, Oklahoma, the other defendant named 'not served'; that on November 25, 1913, without notice to the Stevirmac Oil & Gas Company the court made an order requiring or directing the marshal to amend the return to conform with the facts; that thereafter the return was amended so as to certify that the summons had been served upon the Stevirmac Oil & Gas Company by handing to and leaving a true and attested copy with Virgil Hicks personally, treasurer of said corporation, at Sapulpa, Oklahoma, on October 13, 1913, the president, chairman of the board of directors, or other chief officers not being found in the district; that the said Virgil Hicks was the person in charge of the place of business of the defendant corporation; that the said marshal had not at any time served the said summons on the Stevirmac Oil & Gas Company; that plaintiff in the original suit caused and procured said false amended return to be made by the said marshal; that the Stevirmac Oil & Gas Company had no notice nor knowledge of the said order of the court amending said return until long after the judgment was rendered; that the record does not show that the marshal asked leave of court, or that the court granted leave to make such amended return; that it is true that the court ordered the marshal to amend the original return; that said return was complete upon its face, and that the court had no power to order the marshal to make another or different return; that, therefore, said judgment was obtained without service of process upon the Stevirmac Oil & Gas Company as required by law, and is void. The Stevirmac Oil & Gas Company filed certain affidavits in support of this application.

Upon hearing the application, with accompanying affidavits, the court refused to set aside the former judgment and overruled the application of the Stevirmac Oil & Gas Company. The court made a certificate setting forth that the order refusing to set aside and vacate the judgment rendered December 1, 1913, involved and determined the...