Timmons v. United States

• Decision Date: 01 April 1952
• Docket Number: No. 6367.,6367.
• Parties: TIMMONS v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

194 F.2d 357 (1952)

TIMMONS v. UNITED STATES.

No. 6367.

United States Court of Appeals Fourth Circuit.

Argued March 5, 1952.

Decided April 1, 1952.

Annie Mary Timmons, pro se.

William A. Moran, Special Litigation Atty., Office of Rent Stabilization, Washington, D. C. (Ed Dupree, Gen. Counsel, and A. M. Edwards, Jr., Asst. Gen. Counsel, Office of Rent Stabilization, Washington, D. C., on brief), for appellee.

Before PARKER, SOPER and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

This suit was brought by the Housing Expediter against Annie Mary Timmons to obtain a mandatory injunction requiring the defendant to refund overcharges of rent which the defendant had exacted from 31 persons in various amounts as tenants of 24 apartments owned and operated by her in 6 locations in Columbia, South Carolina. The overcharges were in excess of the legal maximum prescribed by the regulations issued by the Expediter under the authority of the federal statutes.¹

The complaint specified the names of the tenants, the location of the apartments, the amount of the overcharges and the period for which they were paid. The answer of the defendant admitted the ownership and operation of the apartments but denied the overcharges. A trial was had at which no defense on the merits was presented. The Expediter offered evidence in support of the overcharges specified in the complaint, the defendant offered no countervailing evidence, and the judge made findings of fact in favor of the Expediter for the amounts claimed and entered judgment directing the defendant to restore to the Expediter, for the use and benefit of the tenants named, the amounts of the overcharges received from them in the aggregate sum of $1823.08.

The appellant, who conducted the case in the District Court and in this court in proper person, contends that the judgment should be reversed because (1) the case was abandoned by the Expediter before it was called for trial and should therefore have been dismissed by the District Court; (2) she was denied a jury trial in the District Court; and (3) there was no proof of service upon her of certain unanswered requests for admission which constituted the only evidence offered by the Expediter in support of the complaint.

None of these contentions is tenable. The case was instituted on December 8, 1948 and tried on July 9, 1951. In the meantime, on October 13, 1950, the defendant moved to dismiss the complaint on the ground that during the summer term of the court in 1949 at Columbia an attorney for the plaintiff, after a long conversation with the defendant, concluded that the case should be dropped and said that if he found on his return to the Atlanta office of the Expediter that there was objection to dropping the case he would notify the defendant and that he did not later communicate with her. On June 23, 1951, shortly before the trial, the defendant filed a similar motion to dismiss supported by her affidavit in which she averred that she continued to attend sessions of the court after the summer of 1949 pursuant to notices from the clerk. In response to these motions the Expediter filed the counter-affidavit of the attorney named by the defendant to the effect that in the summer of 1949 he appeared in the District Court on behalf of the Expediter to try the case but the defendant requested and was granted a continuance; that on this occasion the defendant approached and talked to him for thirty to forty minutes about the merits of the case and requested him to dismiss it, and that he told her he was not sitting as a judge and could not dismiss the case, but if the Atlanta office of the Expediter was inclined to dismiss the action she would be advised in due course.

On this showing the judge overruled the motion to dismiss, and we find no error in this action. While a federal District Court is vested with inherent authority to dismiss an action for plaintiff's failure to prosecute it with reasonable diligence, the matter is one within the trial court's sound judicial discretion; and there is nothing in the record in the pending case to indicate an abuse of discretion in this respect. See Shotkin v. Westinghouse Elec. & Mfg. Co., 10 Cir., 169 F.2d 825. Not only was the delay in bringing the pending case to trial attributable in part at least to the defendant, but her action in continuing to attend sessions of the court without pressing the motion to dismiss, does not indicate her belief that the case had been abandoned.

Nor was there error in the denial of the defendant's demand for a jury trial. This motion was presented to the court for the first time along with her second motion to dismiss on June 23, 1951. Rule 38 (b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., requires that in any issue triable of right by a jury, a demand therefor may be made in writing by any party not later than ten days after service of the last pleading directed to such issue. The last pleading herein, defendant's answer to the amended complaint, was filed April 29, 1949. Her failure to comply with the requirements of the rule amounted to a waiver of the right to jury trial if any she had. Moreover, she was not entitled to a jury trial in any event because the complaint sought injunctive relief in equity and presented an issue not triable before a jury. McCoy v. Woods, 4 Cir., 177 F.2d 354. Orenstein v. United States, 1 Cir., 191 F.2d 184, 188.

Defendant's third contention is also without merit. It is true that the Expediter confined his proof to the showing that the defendant had failed to make any response to requests for admission filed by the Expediter, which set out in meticulous detail the facts in regard to the overcharges of rent in suit; and that the court found these facts to be admitted by the defendant and based its judgment thereon. This action, however, was in accord with Rule 36 of the Federal Rules of Civil Procedure which provides that each of the matters of which an admission is requested shall be deemed admitted unless the party upon whom the request has been served shall, within a specified time, either deny the matters set out or object in writing on the ground of privilege or irrelevancy. There can be no doubt that the requests in the present suit, if unanswered, were entirely adequate to furnish a basis for the court's findings of facts;² hence the defendant's third contention, which was advanced for the first time in the District Court after the entry of the adverse judgment, is confined to the claim that there was no proof that the requests for admission had been served upon her.

Rule 5(b) of the Federal Rules of Civil Procedure relating to the method of service provides that service upon a party shall be made by delivering a copy to him, or by mailing it to him at his last known address, and further provides that service by mail is complete upon mailing. In view of the important consequences that flow from the service of pleadings and other papers, the courts, quite rightly, have required the strictest and most exacting compliance with the rule when service is made by mail.³

In the pending case, however, the records of the court showed that the requests for admissions had been served upon the defendant in the manner prescribed by the rule They were filed on April 22, 1949, in the clerk's office of the court, signed by the attorney of the Expediter, and attached to them was a certificate, signed by the same attorney, in the following words:

"Certificate of Service.

"I, Jas. G. Herndon, Litigation Attorney, Atlanta, Georgia, certify that I served the above Request for Admissions on defendant on the 20th day of April, 1949, by placing two (2) copies of same in a franked envelope, addressed to the defendant, Annie Mary Timmons, 1620 Laurel St., Columbia, S. C., her last known address, and depositing same in the United States mails at Atlanta, Georgia.

"Dated this 20th day of April, 1949.

"(Signed) James G. Herndon"

The requests were presented to the judge in the District Court after he had considered and denied defendant's motions for dismissal and for a jury trial. At this point in the trial the...