Wise v. Herzog

• Decision Date: 15 July 1940
• Docket Number: No. 7438.,7438.
• Citation: 114 F.2d 486,72 App. DC 335
• Parties: WISE v. HERZOG.
• Court: U.S. Court of Appeals — District of Columbia Circuit

72 App. DC 335, 114 F.2d 486 (1940)

WISE v. HERZOG.

No. 7438.

United States Court of Appeals for the District of Columbia.

Decided July 15, 1940.

Louis Ottenberg and H. Max Ammerman, both of Washington, D. C., for appellant.

Sefton Darr, J. E. Bindeman, and James A. Willey, all of Washington, D. C., for appellee.

Before GRONER, Chief Justice, and MILLER and VINSON, Associate Justices.

MILLER, Associate Justice.

The Small Claims and Conciliation Branch of the Municipal Court of the District of Columbia was established by the Act of March 5, 1938.¹ The act provides for simplified methods of service of process as alternatives for service by the United States Marshal, i. e., "by registered mail with return receipt; or by any person not a party to or otherwise interested in the suit, especially appointed by the judge for that purpose."²

In the present case an attempt was made to serve process of that court upon appellant, defendant below, by sending to her a registered letter addressed: "Mrs. Alfred J. Wise, 31st and Westover Drive, S.E." The letter was returned marked "Unclaimed." Eight days later a second registered letter was sent, addressed in the same manner, and this was returned marked "Refused." Thereafter, on September 6, 1938, pursuant to Rule 9 of the Small Claims Branch of the Municipal Court, a notification was sent to appellant, by ordinary mail, that "The Post Office has returned the Registered Mail Notice we sent to you in this case, marked Refused. Despite your refusal to accept the Notice, the Court will proceed with the case * * *." On September 10th, judgment was rendered against appellant by default. On January 17, 1939, she appeared specially and, on the ground that the service of process was invalid and contrary to the statute, moved to quash the alleged service, to vacate the default judgment, and to dissolve the attachment which had been levied in execution upon the judgment. In an affidavit filed in support of her motion, appellant stated that "she never at any time received a registered letter of any kind or description from the Municipal Court of the District of Columbia nor has she ever refused to receive registered mail addressed to her nor has she ever received letters from the Municipal Court of the District of Columbia sent through ordinary mail." It was stipulated that if appellant were present at the hearing on the motion she would testify exactly as alleged in her affidavit; appellee, however, not conceding the truth of the testimony, or waiving the right to cross-examine. The lower court overruled the motion. We granted a writ of error, in order to resolve the important procedural question, whether valid service was actually made within the meaning of the statute.

The nature and purpose of the Small Claims Court argue — as a matter of public policy — in favor of an expeditious and inexpensive procedure such as is required by the applicable statute and rules of court.³ However, this thoroughly commendable purpose cannot be used to justify a process which may destroy constitutional rights and privileges. An equally important disclosure of public policy is found in the constitutional guarantee of due process,⁴ which requires, for the exercise of judicial power, appropriate notice of the judicial action and an opportunity to be heard.⁵

Service of process is the means by which such notice is given and such opportunity afforded.⁶ Consequently, it must be accomplished by a method reasonably calculated to afford the party sued this constitutional protection.⁷ Without such service, no jurisdiction exists;⁸ the court lacks power to act; and a judgment rendered against a person, under such circumstances, is void for all purposes.⁹

It does not follow, of course, that actual physical service is required in all cases for, although the foundation of jurisdiction is physical, nevertheless, for example, submission to the jurisdiction by appearance may take the place of service upon the person;¹⁰ and various other substitutes for personal service have been recognized.¹¹ However, the Supreme Court has said that all forms of substituted service in actions purely in personam, constitute departures from the rule of the common law and the statutory authority therefor should be strictly followed.¹² And Justice Holmes, speaking for that Court has warned us that when it is sought thus to extend the means of acquiring jurisdiction beyond personal service or appearance, the physical foundation thereof should be borne in mind and "great caution should be used not to let fiction deny the fair play that can be secured only by a pretty close adhesion to fact."¹³

Service of process by registered mail, as provided in the pertinent statute, has been recognized as sufficient to satisfy the requirements of due process of law.¹⁴ However, in view of appellant's denial that she received notice in any form, the question arises whether, in the present case, such service was actually accomplished, in conformance with the statute. In answering the question we must so construe the language of the statute¹⁵ — and of the rule of court,¹⁶ promulgated pursuant thereto¹⁷ — as to avoid any doubt of constitutionality.¹⁸ The presumption, of course, must be that Congress intended service by registered mail to be so made as to insure due process of law.¹⁹

In our view the requirements of due process can be satisfied by compliance with the provisions of the statute as construed in Rule 9.²⁰ The latter constitutes a reasonable exercise of the rule-making power delegated by the statute to the court.²¹ Properly construed, it neither abridges nor extends the jurisdiction of the court beyond the limits of the Act itself;²² hence, it has the force and effect of law.²³ But neither the statute nor the rule was complied with in the present case. With particular reference to the italicized portions of the rule as set out in the margin,^23a the record fails to show (1) that the registered letter was delivered by the postman to the addressee, or to any other responsible person qualified to receive the addressee's registered mail;²⁴ or (2) that the notice in fact came to the attention of the addressee within a reasonable time after delivery and before the return day;²⁵ or (3) that the notice was refused by the defendant and not delivered for that reason;²⁶ or (4) that a return receipt shows delivery to the defendant, or to a representative or agent of the defendant, and the date of such delivery or refusal by the defendant. In other words, the record fails to show exactly the things which it should show, in order to comply with the statute, with the rule, and with the requirements of due process. It follows that the attempted service was insufficient; the judgment should be vacated;²⁷ and the motion to quash service should be granted.

It may be well to note that our decision in this case will not defeat the purpose of the Act, even assuming the improbable occurrence of large scale recalcitrancy upon the part of defendants, in evading service by registered mail. The cost of such service is twenty cents, while a similar service performed by the United States Marshal costs fifty cents.²⁸ Considered in terms of many thousands of cases the substantial reduction in cost of administering justice,²⁹ which results from service by registered mail, might be lost if the only alternative available were service by the Marshal. But the court is faced with no such severe alternative. The Act permits service, also, by persons designated for that purpose by the court³⁰ — a method, incidentally, which has been rarely used so far.³¹ In view of the fact that the United States Postal Service carries on dependable special delivery mail service at a cost of ten cents — in addition to the regular postage — for each letter,³² and commercial agencies, as we know, make similar deliveries for from ten to twenty-five cents per item, it would appear that the court has available to it an equally inexpensive method of service which may be used in those cases — a relatively small percentage³³ — in which service by registered mail does not succeed.

It is urged that the judgment of the lower court cannot be reversed because appellant did not allege in her motion to vacate that she had a valid and meritorious defense to the claim on which she was sued. Ray v. Carr,³⁴ is cited in support of this contention. Assuming, but not deciding, that the point is properly before us, that case, nevertheless, does not govern the present situation. There, following a judgment obtained in the Small Claims Branch of the Municipal Court, application was made to the District Court for an injunction to restrain execution upon the judgment, on the ground that it had been obtained without proper service of process. In affirming the decree dismissing the bill, we held that enforcement of a void judgment will not be restrained by a court of equity, on a collateral attack, unless a meritorious defense to the action is alleged; on the theory that one who seeks equity must do equity. And we called particular attention to the fact that appellant had failed to exhaust his remedies in the Municipal Court by moving to vacate the judgment. In the present case, the attack upon the judgment was made not collaterally but directly by a motion to vacate. No showing of merits is necessary in support of a motion to vacate a void judgment. "Merits need not be shown where a judgment resulting from an unauthorized appearance of an attorney is regarded as void, and the same is true where there was in fact no service of process and therefore no jurisdiction even though extrinsic evidence is necessary to show this fact. Under such circumstances the defendant is not bound to submit himself to the jurisdiction."³⁵

Reversed.

1 52 Stat. 103, D.C.Code, Supp. V, 1939, tit. 18, § 241.

2 Id. § 241d(a). See Rule 7, Rules for the Small Claims and Conciliation Branch of the Municipal Court.

3 Justice Owen J....