Barber v. Turberville
218 F.2d 34
D.C. Cir.
1954
Check Treatment

*1 v. TURBERVILLE. BARBER 11950.

No. Appeals Court

United States Circuit. Columbia District of

Argued Jan. Aug.

Decided Lane, Washington, C.,

Mr. Denis K. D. appellant. Somkin, Washington, Fred C., Mr. D. O’Brien, Mr. whom John J. Wash- C., ington, brief, ap- D. was on the pellee. PRETTYMAN, FAHY and Before Judges.

DANAHER, Circuit Judge. DANAHER, Circuit Angeline Plaintiff-appellee, Turber- ville, a default secured *2 August $10,000 defendant-appellant, 29, appearance On 1951 no having responsive de- Emma After denial of the been and Barber. entered having pleading reopen and aside fendant’s motion to set been filed behalf of default, Barber, defendant upon plaintiff’s and to vacate the was entered default appealed. application. defendant plaint Plaintiff’s case alleged jury list, however, was continued on had first count that May 23, until defendant had alienated the affections of when without notice Barber, plaintiff plaintiff’s husband, H. her William Turber- withdrew de- ville, count, Court, mand for and in the second criminal trial. The District sitting charged. Shortly jury, thereupon conversation was without a be- heard Angeline plaintiff’s instituting action, evidence, despite fore this the ab- sence Turberville had commenced mainte- defendant and her counsel. alleging may The count nance suit her alienation of affec- husband. We proof, tions was for observe that the soon dismissed two cases became failure among May relationships as involved entered on as the plaintiff respective parties alleged $10,000 1952 for the were recover for criminal represent- conversation. have been. present ed in both actions her attor- 26, 1952, Attorney On June Bartle ney. Representing William H. Turber- moved the District Court for an order ville in the maintenance suit was an at- to vacate and set aside the default and torney named Bartle. this To same Bar- May 28, entered on tie, day following upon service her setting complaint forth that had brought copy Emma Barber given through oversight been to him but complaint summons and in this case. an answer was not filed “because the Plaintiff had endorsed the com- complaint became mixed with another plaint demand for trial At- file”; negotiations for settlement torney Bartle failed appear- to enter an were under discussion in the instant ance in behalf the defendant Barber companion case and the case Turber- or to file an complaint. answer May ville v. Turberville as late as papers From affidavits and motion on 1952; attorney that the defendant’s file we have culled purported additional not aware until June 1952 that a de- facts. taken; fault had been the defendant had a valid defense to both Attorney Bar- Bartle told defendant counts; plaintiff’s position would take care of the case ber he jeopardized, would not finally and hear him that she would from her and just complete has “defendant and Bar- later. Thereafter she talked with fense to said claim herein, occasions and was inform- tie on several fully appears by as defendant’s verified talking he was ed that complaint herein, answer to the annexed arrange lawyer trying and that he was part hereof, hereto and made a which out court. Plaintiff’s a settlement hereby submits in this negotiations insisted that the counsel cause, plaintiff having been under discussion involved settlement copy said plain- answer.” The action maintenance between the opposition tiff filed her to defendant’s plain- plaintiff and husband and vacate, thereafter, motion to Sep- and sought had never tiff’s counsel settle- 8, 1952, tember defendant’s motion was deposi- the instant case. The ment of denied, and the verified answer was nev- respective principals all three tions er filed. to have been Turberville seem Turberville, proceedings By which en- December 1952 defendant had gaged engaged supplant Bartle, the attention the District Court new counsel to 1951, 1952, January time or other at one and who continued however into having attorney both sides and made refer- Turberville. Her thereto, attorney present do likewise. we then filed ence a motion alleged equities cause would which aside the vacate and set hardship were in the event the answer to file allow vacated, offered just, the defendant has set- terms defend such *3 security of neglect, post the ting for the amount grounds to excusable forth as circumstances, judgment. void, Under these the the given certainly may to damages excessive, consideration she failed were requesting proper party a the claims a competent representation of of to receive of Bridoux v. East the action. See has not “that the defendant counsel and U.S.App. Lines, Inc., 1954, 93 right jury.” ern Air The to trial waived her 207; Tozer v. Charles supporting D.C. further affidavit defendant’s Milling Co., Cir., 189 A. 3 Attorney not in- Krause Bartle had out that set F.2d that a default had been formed her against her, her of a had not informed personally That judg- right appeal to after the negligent protection of the entered “she is ment had been and that from the interests seems clear facts has a that she advised and believes recited. In situations as are here such plaintiff.” action of the fense the disclosed, the courts have reluctant been plaintiff, opposition the After further to attribute the errors of July 27, motion 1953 defendant’s legal g. representatives. their e. Eli See aside, set amended as vacate and Pitucci, D.C.E.D.Pa.1952, as v. 13 F.R. appeal shown, fol- denied. This 13;D. Kantor Bros. v. Mutual Construc lowed. Co., 227; D.C.E.D.Pa.1943, tion 3 F.R.D. 55(c) Rules the Federal Pitcairn, D.C.N.D.Ill.1940, Robins v. 3 provides Procedure that: Civil 60b.21, F.R.S. Case 2. good “For cause shown the court already indicated, As has been may , set aside of default respective causes of action were and, judgment by if a default has closely interrelated. The conduct may entered, been likewise set it plaintiff’s relationship husband and his aside accordance defendant in the instant case were (b).” subject inquiry in both cases. 60(b) of And Rule the Federal Rules of negotiations That settlement Tur Procedure, pertinent part, Civil fur- berville v. Turberville were conducted provides ther as follows: protracted period disputed. over a is not peculiar circumstances at least con upon “On motion such terms vince us that it was not unreasonable may just, as a for the defendant to assume that settle legal representative party or negotiations admittedly prog ment order, pro- or from final Turberville, ress Turberville v. related following ceeding for the reasons: to the instant case as well. mistake, inadvertence, surprise, (1) neglect; or ... or excusable presents Thus we hold that the record justifying (6) other reason re- neglect,” a case “excusable and we re- judg- operation lief from the verse the and remand the case ment. . . may Since relief new trial. granted “upon just” such terms as are 55(c) opinion Rules In our (Rule 60(b), Federal Rules of Pro- given construc liberal 60(b) should be cedure), pay the defendant will all costs judge dismissal tion. appeal. of this complaint and count of the first disposition of makes the case This the award reduction substantial pass upon point unnecessary damages for us under claimed below plaintiff’s very least, demand for to whether at the indicate count second properly jury was withdrawn mitigating exist. circumstances intervening consent of the “without plaintiff’s part, For N.Y.1944, 55b.224, 38(d), of Civil 1. The See Rule Federal Rules F.R.S. Case plaintiff having Procedure, Prac- and Moore’s Federal endorsed plaint 1951). jury trial, (2d well the de- tice ed. It default, knowingly seem that even after the issue fendant here neither assent- damages right ed to have been submit- should abandonment of unliquidated ted to the with the determination of the accordance damages 55(b), of Rule Rules nor Federal consented to the withdraw- Procedure, of Civil al of the at least “to deter- demand. Nor did damages.” judge mine the amount In the trial find of trial *4 City by Thorpe Bank, jury Cir., v. National 5 does not exist under the Consti- 1921, page 202, 274 F. 200 at or tution of the statutes United States. 39(a), said: See Rule of Federal Rules Civil Procedure. by “A default a defendant does judgment The not of concede the the District Court amount of the dam- ages; only will be reversed and but set aside and the de- that the is parties fault damages. entitled will be vacated. Unless recover some jury trial, shall plea consent Without to waive he is a a entitled to con- new jury damages test before a amount of will had all be on is- sues. inquiry.” Champ- the writ Gasoline of Products Co. v. Refining Co., 1931, lin 494, 283 51 U.S. Klapprott also See v. United 513, S.Ct. 75 L.Ed. 1188. States, 611, 1949, 601, 612, 335 U.S. 69 Reversed and remanded for further 384, 266; 93 L.Ed. S.Ct. Peitzman v. proceedings in accordance with this City Illmo, Cir., 1944, 956, 8 of 141 F.2d opinion. 962, 963, denied, 1944, certiorari 323 718, 47, U.S. 65 S.Ct. 89 L.Ed. 577. PRETTYMAN, Judge (dis- Circuit Surely, this, in a case such as it is the senting) . practice, actually compell if better judgment. I would affirm this ed,1 damages issue as to be sub jury. Hoagland, mitted to the Bass v. Turberville two 5 Mrs. filed civil actions Cir., 1949, 1951, against January 205, 172 F.2d in one in certiorari de her hus- nied, 1949, 816, 57, against 338 U.S. band 70 S.Ct. 94 and the other in March 494; Cinque against Langton, L.Ed. Barber. v. Mrs. The action D.C.E.D. 38(a) provided proceed except 1. When Rule sets forth in that “The otherwise right by jury by by ings bankruptcy, of trial as declared and next sec provided: Seventh Amendment to the Constitution tion.” Rev.Stat. 649 “Is § given by or as a statute of the in civil United sues fact cases circuit preserved may by States shall be inviolate", tried court the jury, and determined clearly thorough court, reflects the without the intervention of ly policy parties, our established law. whenever the or at their cleric, torneys pursuant record, Rules have been loith drafted to au file thority stipulation writing waiving 19, conferred the Act of June ” 1934, (1952), they (Emphasis supplied.) 28 U.S.C. . § 2072 . . See Kearney Case, 1870, 275, have the effect of statutes. See Bass v. 12 Wall. 20 Hoagland, Cir., 1949, 205, 5 395. Cf. 28 172 F.2d L.Ed. Title § cer U.S.C. 770 denied, (1946) providing pertinent 1949, 816, part: tiorari 338 “The U.S. S.Ct. trial of issues of L.Ed. 494. fact We have held the district by jury. contrary courts . . Rules even . shall ...” invalidate simply of the Thus the Rules District Columbia reverse Brown, procedure, jury Code. Shima v. so that trial once 77 U.S. App.D.C. 115, waived, certiorari automatic unless is now available denied, 1943, “preserved” “any U.S. 63 S.Ct. and so demand of party.” 38(b). L.Ed. “A Rule provided: Rev.Stat. 648 § provided “The trial may made herein issues of fact the circuit courts shall be not be withdrawn without the consent of by jury, except equity cases of 38(d). and of Rule And see admiralty jurisdiction, and maritime damages. motions, principal If through from such proceeded an- husband against judgment patient judgment. depositions secures a swers and negligence response doctor because of the appear in Mrs. Barber did not assistant, doctor’s do not we her and filed summons negligence against was that doctor because the response her. to the action why employee. no reason twenty days of his I see after Her answer due protect person summons, we should which would the service resulting from the April. him about have been the 9th negligence attor- Procedure, of his authorized Rules of Federal principal ney. all such cases the 55, provide for agent, right have a of action counsel waited fault. Mrs. Turberville’s problem. August is a Doctors different 19th 29th and on from March malpractice; rea- liable for I see no applied latter date why lawyers not be. son should default. Default was entered. Nothing May, 1952, happened then until I think that *5 nine almost months after in which defendant would have a civil judgment. The matter then default ap- does not failure to action pear survive his for on trial before the District came any in action. manner the Court, taken, and evidence was plaintiff, ac- the case before us the findings of made fact and conclusions of custom, cordance the usual demand- judgment for law and entered a dam- jury complaint. The in her ed ages. appeal from No noted that was complaint defendant did named in abut month later a motion to 38(d) says: appear. not even Rule judgment vacate the default was filed by jury “A demand for trial made as proffered. answer and an was The Dis- provided may herein not be withdrawn denied trict Court the motion vacate. without the I consent of the n appeal No Mrs. Barber “parties” peo- think in this Rule means from that denial. Thus the sum of the every ple appeared. who have Otherwise orderly perfectly is situation that plaintiff in which case follows haste, process, without filed customary form in his and includes her action was entered for jury plaint a would her. place jury have to take its on the docket jury and await trial. relieving from is provides against 5(a) principally Civil Rules negli- orders, subsequent pleadings ground that her counsel notices, appearances, complaint, gent. hold law- think court should I neglect. upon every etc., mands, responsible yers shall be for inexcusable affected, say party defendants no service need for “but be counsel If courts neglect for pleadings their clients’ in default failure to without excuse made can except as- appear” the clients service of ill effects to business neg- serting against permitted him. Rule from this new claims to result will be ligence, judicial pro- provides part: par- complete 55(b) (2) “If chaos in negli- surely ceedings ty whom will result. damaged sought action, lawyer appeared gence in the have has of her is $10,000.1 appearing representative, (or, if Barber the sum he Mrs. But, damages, representative) form be in the of an shall served with where application party, are inflicted notice to a third written judgment award days prior man, doctor, hospital or a at least 3 to the a business by negligence hearing application.” of his or its on such Those au- perfectly agent, clear do not make it that a the courts thorized gone positive would have make statement not I do any negligence damaged event. that she might lawyer, shown because it be appear answer, ap- failed to he named defendant who does not that failed anything pear. is not entitled notice of goes lawsuit, no- on in the not even to a ought Furthermore, I think this court judg- application tice of for default not in its discretion at this late date How, then, ment. it he can be said proceedings require these another “party” procedural is a other jury. of this civil action Trial before a purposes? I think a named defendant court, before the is re- where evidence appearance must make an before he has findings made, ceived and is as valid a require that the case judicial proceeding trial, jury un- is a him be submitted to a His failure validly jury less a has been demanded. respond ought summons demanded, despite A trial must be pro- construed as a waiver whatever provision. is the constitutional Such rights ought has; cedural he not to Rules, provision 38(a) of the Civil impregnable up- treated as an insistence (d).4 rights. on such I believe such to be the purpose, meaning intent and the Rule. everybody every knows, As if civil action appearance

in which no was entered down on were set

docket, hopelessly the courts would be ought I

overwhelmed. think defendants *6 permitted delay not be and confuse proceedings ig- by merely them STATES. COOPER v. UNITED noring the court’s summons. No. 11877. says The court that the did Appeals, United States Court of knowingly consent to the abandon- District Columbia Circuit. ment of her trial. But Argued 1954. June surely it cannot be held that an act inex- August 5, Decided cusably negligent “knowingly” was not through done. This defendant inexcus- neglect appear able failed to in the law- suit. It seems to failure me knowing

constituted a abandonment. Hoagland2

The court cites Bass Langton.3 Cinque v. In the Bass case appeared but failed te an- quarrel I

swer. have no awith rule that appeared

a defendant who has is there- “party”;

after indeed the Rules seem proposition. to me be clear on that Cinque odd, case the facts were but defendant, of it

the sum was that attorney,

without sent his answer to counsel, who did not actu-

ally moved to file strike it. The Obviously did strike it. being the defendant as

treated in the It ruled the basis that case. he had 2. 5 nied, L.Ed. Cir., 1949, 338 U.S. 70 S.Ct. certiorari de 3. See discussion in 5 4. tice N.Y.1944). Fed.Rules § 38.19 [3] Serv. (2d 55b.224, Moore, ed. 1951). Federal Prac- Case (E.D.