U.S. on Behalf of Adm'r of Small Business Admin. v. Charter Bank Northwest, 13-84-107-CV

• Decision Date: 21 February 1985
• Docket Number: No. 13-84-107-CV,13-84-107-CV
• Citation: 694 S.W.2d 16
• Parties: The UNITED STATES of America on Behalf of the ADMINISTRATOR OF the SMALL BUSINESS ADMINISTRATION and the Small Business Administration, Appellants, v. CHARTER BANK NORTHWEST, Appellee.
• Court: Texas Court of Appeals

Page 16

694 S.W.2d 16

The UNITED STATES of America on Behalf of the ADMINISTRATOR OF the SMALL BUSINESS ADMINISTRATION and the Small Business Administration, Appellants, v. CHARTER BANK NORTHWEST, Appellee.

No. 13-84-107-CV.

Court of Appeals of Texas Corpus Christi.

Feb. 21, 1985.

Rehearing Denied March 28, 1985.

Alan Scott Lutzer, Houston, Carol Bailey Boriack, Asst. U.S. Atty., Small Business Administration, Corpus Christi, for appellants.

Thomas E. Tiemann, Austin, for appellee.

Before NYE, C.J., and SEERDEN and KENNEDY, JJ.

OPINION

SEERDEN, Justice.

This is an appeal by Writ of Error from a default judgment in the sum of $30,973.77 plus attorney's fees of $10,300.00 together with interest and, in addition, for foreclosure of the security interest of appellee in certain personal property described in the judgment.

In its first point of error, appellant contends the trial court erred in entering its judgment because it did not have jurisdiction over the person of appellant. Appellant contends that service of process was ineffective to confer jurisdiction on the trial court over the Small Business Administration, because appellee failed to comply with either the federal law or the Texas Rules of Civil Procedure relating to service of process.

Appellee, who has not seen fit to reply to the brief filed by appellant herein, attempted to obtain jurisdiction over appellant by effectuating service of citation under Rule 106(a)(2) of the Texas Rules of Civil Procedure. The record reflects that the Clerk of the District Court, in accordance with Rule 106(a)(2), mailed a copy of the citation along with a copy of plaintiff's petition, by United States Certified Mail, deliver to addressee only, Return Receipt Requested, to the following persons:

1. The Corpus Christi Branch Office of Small Business Administration;

2. U.S. Attorney for the Southern District;

3. Administrator of the Small Business Administration; and

4. Attorney General of the United States, William F. Smith.

The Federal Government has provided that suits against the Small Business Administration may be accomplished by following the provisions of Rule 4, Federal Rules of Civil Procedure or Section 2410 of Title 28, United States Code. Both of these provisions require delivery of the service of process upon the United States Attorney for the district in which the action is brought, or upon his designated assistant or clerical employee. The federal courts have held that personal service by delivery on the United States Attorney for the district in which the action arises or his duly appointed assistant or clerical employee, is a jurisdictional requirement where an agency of the United States is being sued. Zapata v. Smith, 437 F.2d 1024, 1027 (5th Cir.1971); Smith v. McNamara, 395 F.2d 896, 898 (10th Cir.1968), cert. denied, 394 U.S. 934, 89 S.Ct. 1211, 22 L.Ed.2d 466 (1969); Dutkiewicz v. Foster, 88 F.R.D. 85, 86 (D.Mass.1980); Lawrence v. Acree, 79 F.R.D. 669, 670-671 (D.D.C.1978). In this case, no attempt to personally deliver the citation and copy of plaintiff's petition to the United States Attorney for the district, or, for that matter, anyone else, was made by appellee.

The question of whether or not jurisdiction over a U.S. Government agency is governed exclusively by federal law does not appear to have been decided by any Texas appellate court. Appellant has referred us to Finch v. Small Business Administration of Richmond, Virginia, 252 N.C. 50, 112 S.E.2d 737 (1960), as the only case from a state supreme court touching the question. Finch held that in cases involving service of process on the Small Business Administration, the federal law controlled over the laws of North Carolina.

It is not necessary, however, to decide whether the federal rules control over the Texas rules with respect to service of process in this case, inasmuch as the attempted service was ineffective under either federal or Texas law.

Where a default judgment is directly attacked by writ of error, it is essential that there be strict compliance with the Rules of Civil Procedure relating to issuance of citation, the manner and mode of service and return of process. There are no presumptions of valid issuance, service and return of citation. Mega v. Anglo Iron & Metal Co. of Harlingen, 601 S.W.2d 501 (Tex.Civ.App.--Corpus Christi 1980, no writ). None of the four returns of the...