Tate v. Kelley
| Decision Date | 04 March 1957 |
| Docket Number | No. 1900.,1900. |
| Parties | Frank G. TATE, Appellant, v. Benjamin F. KELLEY, Appellee. |
| Court | D.C. Court of Appeals |
E. Lewis Ferrell, Washington, D. C., with whom Thurman L. Dodson, Washington, D. C., was on the brief, for appellant.
Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges.
On August 14, 1956, appellant moved to vacate a default judgment entered on May 24, 1955, against him in favor of appellee. The basis of his motion was his claim that he had never been served with process and had no knowledge of the suit or judgment until a few days before filing his motion, although the marshal's return showed that appellant had been personally served. The trial judge denied the motion, holding that the trial court's Rule 60(b) (6) requires that a motion to vacate a judgment be filed within a reasonable time, and that the record and evidence showed appellant had notice of the action. This appeal followed.
Both parties have argued here the effect and scope of the trial court's Rule 60(b) (6), which in substance is the same as Federal Rule of Civil Procedure 60(b) (6), 28 U.S.C.A.; but in our view that rule has no bearing on the case. The ground advanced by appellant in support of his motion was the alleged lack of service. This raised but one question: Was appellant personally served as indicated on the marshal's return? If he was so served, the motion should be denied because he advanced no ground for relief under Rule 60 (b) (6). On the other hand, if he was not served with process, the court acquired no jurisdiction over him, the judgment was void, and the motion should be granted. Rule 60(b) (4) provides for relief from a void judgment, and the reasonable time limitation with respect to such relief "must generally mean no time limit." 7 Moore's Federal Practice (2d ed.) § 60.25 [4].1
We do not understand that the trial court, in holding that appellant had "notice of the action," held that appellant had been served with process.2 Accordingly, the case must be remanded in order that the trial court may determine whether appellant was served with process. In so remanding we point out that although in some jurisdictions it is held that a marshal's return is conclusive,3 the majority and better rule is that the return is prima facie evidence of the facts stated therein and strong and convincing proof is required to rebut the presumption of its verity.4
Reversed and remanded.
2. There was some evidence that some man who had identified himself as a brother of appellant, knew of the pendency of the action.
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Brooks v. United States
...discovery and taking of appellant's clothes and bedding fall within the proper limits of the plain view doctrine. Cf. Tate v. Kelley, D.C.Mun.App., 129 A.2d 855 (1957). Upon an adequate showing by the government that the officers inadvertently unearthed this evidence within the normal and r......
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Alexander v. Polinger Co., 84-825.
...is required to rebut the presumption of their verity. Fireman's Insurance Co. v. Belts, 455 A.2d 908, 909 (D.C.1983); Tate v. Kelley, 129 A.2d 855, 856 (D.C.1957); accord Castro v. Universal Acceptance Corp., 200 A.2d 202, 203 (D.C.1964); see Noble v. Union River Logging Railroad Co., 147 U......
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Castro v. Universal Acceptance Corporation
...service which may only be impeached by strong and convincing evidence. Hoaney v. Liss, D.C.App., 194 A.2d 668 (1963); Tate v. Kelley, D.C.Mun. App., 129 A.2d 855 (1957). Defendant declined that opportunity and elected to stand on her affidavit. The circumstances were not such as to require ......
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Jackson v. United States
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