Thompson v. Tanner

• Decision Date: 05 March 1923
• Docket Number: 3831.
• Parties: THOMPSON v. TANNER.
• Court: U.S. Court of Appeals — District of Columbia Circuit

287 F. 980

THOMPSON v. TANNER.

No. 3831.

United States Court of Appeals, District of Columbia.

March 5, 1923

Submitted December 13, 1922.

Appeal from the Supreme Court of the District of Columbia.

Irving Williamson, of Washington, D.C., for appellant.

Alex Wolf and L.E. Tanner, both of Washington, D.C., for appellee.

Before VAN ORSDEL, Associate Justice, and MARTIN and SMITH, Judges of the United States Court of Customs Appeals.

VAN ORSDEL, Associate Justice.

Elizabeth Douglas Thompson filed her bill in the Supreme Court of the District of Columbia for a divorce a mensa et thoro from appellant, her husband, and for maintenance and support. It is averred that on January 26, 1916, complainant filed her bill for maintenance and support against her husband, being equity cause No. 34049, on which a decree was entered granting her permanent alimony at the rate of $65 per month. It is further averred that thereafter a stipulation was entered into whereby, in consideration of the dismissal of equity cause No. 34049, the husband agreed to resume marital relations with his wife and deed to her certain property in this District, of the value of $2,000. After conveyance of the property and dismissal of the suit, complainant avers that she presented herself at the residence of appellant, for the purpose of resuming marital relations, and he not only refused to admit her, but used abusive language, threatening to do her bodily harm.

The stipulation contained a clause providing that:

'In the event the said defendant shall fail to properly support and maintain his said wife, the plaintiff, or shall force her to leave him by reason of his misconduct, or if he shall desert or abandon her, then the said plaintiff be and she is hereby given the right to again apply to the court for maintenance and support.'

It appears that when this suit was instituted appellant had left the District. A summons requiring defendant to answer a rule to show cause was issued April 21, 1921, and returned May 9th, indorsed 'Not found.' An alias summons was issued on May 9, 1921, and returned June 7th indorsed 'Not found.' On July 29, 1921, a petition for the appointment of a sequestrator was filed, alleging evasion of service; that petitioner was advised that the defendant intended to remain away from the District of Columbia, though a resident thereof; that there is a monthly return from certain real estate of the defendant described therein; and praying for the appointment of a sequestrator to collect the rents, and, if necessary, sell the property in order to secure funds for the maintenance and support of complainant.

A pluries summons was issued October 24, 1921, requiring the defendant to answer the bill and the petition for sequestration. The summons was returned December 16, 1921 indorsed 'Not found.' On November 2, 1921, while the pluries summons was still out in the hands of the marshal plaintiff filed an affidavit for service by publication averring that, since April 25th, she had been unable to locate the defendant, and that he had been absent more than six months from the District. Accordingly on the same day an order of publication was issued, requiring the defendant to--

'cause his appearance to be entered herein on or before the fortieth day, exclusive of Sundays and legal holidays, occurring after the day of the first publication of this order; otherwise, the cause will be proceeded with as in case of default.'

Proof of publication, beginning November 4th and continuing for three successive weeks, as required, was duly made, and in March, 1922, the cause was calendared. On April 26, 1922, an order was passed, reciting certain of the previous proceedings, including the order of publication and proofs of publications thereof, and appointing appellee, Louis E. Tanner, sequestrator of premises 937 R street, this city, 'belonging to defendant, Silas S. Thompson, and to manage and conduct the same and receive the rents and profits therefrom and to pay over to the plaintiff herein, for her maintenance and support pending the final determination of this cause, the net rents and profits thereof as the same shall accrue, subject to the further order of this court.'

Defendant appeared specially and moved the court to set aside the order appointing a sequestrator, on the ground that the court was without jurisdiction to make the order as shown by the record and proceedings in this case, setting out the several grounds upon which the jurisdiction of the court was challenged. From an order appointing the sequestrator, and the order denying defendant's motion, this appeal was taken.

The jurisdiction of the court to make the order appealed from is challenged on the ground that the order of publication, being made while the pluries summons was still outstanding in the hands of the marshal and not returned, is void. We think the notice of service by publication was prematurely made. Section 106 of the D.C. Code provides:

'No order for the substitution of publication for personal service shall be made until a summons for the defendant shall have been issued and returned 'Not to be found,' and the nonresidence of the defendant or his absence for at least six months shall be proved by affidavit to the satisfaction of the court.'

Equity rule 27 of the District Supreme Court provides:

'Whenever a subpoena shall be returned not served as to any defendant the plaintiff shall be entitled to other subpoenas, 'toties quoties,' against such defendant, if he shall require it, until due service is made, provided that such other subpoenas when not served shall be returnable on the next rule day occurring twenty days after the issuance thereof.'

The pluries summons, under the rule, was made returnable, if not served, 'on the next rule day occurring 20 days after the issuance thereof,' which carried it over until the rule day in December. Notwithstanding, on November 2d the affidavit was filed and the order for service by publication was made. In Plumb v. Bateman, 2 App. D.C. 156, a summons was issued and returned by the marshal, indorsed 'Not to be found,' on the same day it was issued. Within seven days thereafter the order of publication was made and published. The court, holding the service void, said: 'Congress did not intend to leave to the complainant, either by the statements of his bill, or by the verbal direction of his solicitor to the marshal, to determine the question of the feasibility of the service of a writ or to dispense with the attempt to serve it. Congress evidently meant that there should be some opportunity for a bona fide attempt to serve the writ. And yet, under this practice, if the defendants actually came within the jurisdiction at any time before the rule day, the marshal would have been precluded by his return from any further action.'

By the same rule, where a plaintiff elects to rely upon an alias or pluries summons, as he may under the rule, he must abide...