BASS v. HOAGLAND
No. 12394
United States Court of Appeals Fifth Circuit
Jan. 18, 1949
Rehearing Denied Feb. 28, 1949
172 F.2d 205
It thus clearly appears that it was the mentioned “data” that received “consideration” - not the “opinion” of the agent. This data is in common use in the insurance field and its “consideration” by the court is not challenged on this appeal. Though it be conceded that an “opinion” of an insurance agent as to whether appellee could secure life insurance would be “immaterial,” a consideration of the record persuades us that the admission of this opinion was at most an error of a harmless character which did not so prejudice appellant‘s case as to justify reversal of the judgment. It is not to be assumed that a capable judge would not discard irrelevancies in the evidence when called upon to make a serious decision.
In summary, other findings were that appellant had violently, wrongly, maliciously and deliberately assaulted appellee without provocation, and beat, wounded and injured him by striking him one or more blows on the head with a garden rake thereby producing a depressed compound fracture of the skull, laceration and destruction of appellee‘s brain. That appellee had suffered great bodily pain and mental suffering and had been totally disabled from date of his injury until trial; that appellee will be disabled by reason of his injury for many months to come and unable to perform any work or services, and will suffer pain, discomfort and mental suffering for many months to come. Also that appellee had incurred hospital bills in the sum of $744.25 and bills for physician‘s services in the sum of $750.
These findings are amply supported by the evidence, as is the finding that appellee had been damaged in the sum of $37,000. From the whole record we are satisfied that the case was fairly tried and that the judgment should be affirmed.
Dwight Whitwell and Roland Boyd, both of McKinney, Tex., for appellant.
Carlisle Blalock, of Dallas, Tex., for appellee.
Before HUTCHESON, SIBLEY, and MCCORD, Circuit Judges.
SIBLEY, Circuit Judge.
The judgment for $9,833.49 from which appeal is taken was entered on a motion for judgment on the pleadings under
Such being the pleadings, the plaintiff was allowed to introduce a certified copy of the judgment, which we will regard as making it an exhibit to the complaint. It states that the case came on for trial on Dec. 13, 1943, the plaintiff being present by named attorneys, and the defendants being present neither in person nor by attorney, “but being in default by reason of the withdrawal of Cowan, McCorkle, Kahors and Nelson and W. A. Kahors, which withdrawal had been previously made in open court by said attorneys after notice to defendants“; that an affidavit had been made that the defendants were not in military service; that “thereupon the matter proceeded to trial and evidence having been introduced and argument of counsel having been made, the court finds that the plaintiff is entitled to judgment in the amount prayed for“, whereupon recovery was adjudged in the sum of $7,810.70. Besides being signed by the judge, it is marked “Approved“, signed by plaintiff‘s attorneys. It was not filed by the Clerk till April 5, 1944.
On a motion for judgment on the pleadings the old rule obtains that the fact allegations of the answer are to be taken as true, but those of the complaint are taken as true only where and to the extent that they do not conflict with those of the answer. In this case the motion for judgment itself contains an express admission, for the purposes of the motion only, that the grounds of defense in the answer are true, but asserts they are only a collateral attack upon a judgment regular upon its face. The facts thus presented make this picture: Bass, a citizen of Texas, was sued in Kansas (with another) by a citizen of Kansas for a personal injury inflicted in an automobile accident for damages alleged to be $7,810.70. The mode of service does not appear but is immaterial because Bass appeared by counsel and filed an answer to the merits. The plaintiff filed a demand for jury trial and Bass has never consented to its withdrawal. For an undisclosed reason defendants’
The plaintiff argues that the remedy was by setting aside the default judgment under Rules 55(c) and 60(b) on motion within six months, or by “an action to relieve a party from a judgment” for which Rule 60(b) fixes no limit of time. It may be that under
Both courts involved are federal courts, proceeding under federal law. The due faith and credit clause of the Constitution, Art. IV, Section 1, is therefore not directly applicable. The validity of the judgment of the Kansas District court depends on the Constitution and laws of the United States alone, the procedural law of neither Kansas nor Texas being controlling. The federal Rules of Civil Procedure have the force and effect of statutes, but no more. It is well settled law in the federal courts that a judgment of a court having jurisdiction of the parties and of the subject matter is conclusive of the matter it decides and cannot be collaterally attacked for error in procedure or as to the merits. It is also well settled law that its express recitals import verity; and where the judgment is silent, if the court rendering it is one of record and of general jurisdiction, the federal district court being such a court, all presumptions are in favor of its regularity. It is equally well settled that such presumptions may be overcome and that recitals as to things proper to be shown in the record on which the judgment rests may be overborne by reference to that record. It is also settled that a suit on a judgment, being a mode of enforcing it, does not open it to direct attack, and that any attack is collateral. Since the Kansas court had jurisdiction of the person of Bass by his appearance and pleading to the merits, and had jurisdiction to render a money judgment between citizens of different States for a personal injury, most of the several attacks collaterally made in the answer cannot avail because they assert mere error in the exercise of jurisdiction rather than usurpation of power.
But the last defense requires careful consideration. It asserts that the jury trial of the fact issues in the case which is guaranteed by the
There is of course no right to a jury trial when there is no issue of fact to be tried, and a judgment by default proceeds on that basis. But here, on the facts admitted and provable by the record itself, there was no default from which a confession of the complaint can be presumed. There was appearance and pleading as the summons required, and a demand for jury trial by the plaintiff which operated as a demand by the defendant also unless withdrawn by his consent, which was not given.
A case in the federal courts having a bearing on the failure in the present case to give notice that a judgment as by default would be asked is Wetmore v. Karrick, 205 U.S. 141, 27 S.Ct. 434, 51 L. Ed. 745. There the suit was upon a judgment in a case where counsel for defendant had withdrawn as here, after adverse verdict and pending proceedings to review it. The case was continued and after several terms was dismissed on a general call of the docket. Several terms later without notice to the defendant the order of dismissal was stricken as improvidently granted and a judgment was entered on the verdict against the defendant. It was held that the judgment was void for want of due process and subject to collateral attack.
We are persuaded that judgment for the plaintiff ought not to have been entered on the pleadings in the present case, and that the truth of the answer ought to be tried. If the judgment sued on is found to be void, the Kansas court would probably now set it aside, leaving the case there for trial on its merits, which would seem the true jus-
Reversed.
HUTCHESON, Circuit Judge (dissenting).
Like my associates, I feel that, as appellant presents it, this is a hard case, and that it calls for relief if relievable. Unlike my associates, I believe that it is not relievable and that the relief of reversal accorded by the majority is just another instance of a hard case making bad law.
The general principles1 governing cases of this kind, as set out in the opinion of the majority are well established. These leave in no doubt that while want of jurisdiction was a defense to the suit on the judgment, that want must appear on the face of the record or from specific facts alleged by the defendant.
The majority, though agreeing that no federal case has been found which held that the trial of a case without a jury subjected the judgment to collateral attack, seems to hold that the entry of judgment here without the intervention of a jury rendered the judgment void. The reasons put forth in support of this view are not at all convincing. The three authorities cited in support2 are, with deference, not in point. In none of them was the question of trial by jury raised. In each of them the judgment on its face carried its death warrant. Here nothing recited in the judgment3 or pleaded with respect to it, in my opinion, made it void. Not a single matter of fact carefully recited in the judgment was denied by the defendant. Indeed, the defense seemed sedulously to avoid denying the facts recited. These recited facts were: (1) that the court had jurisdiction over the person of the defendants; (2) that, having answered, the defendants had become in default by the withdrawal in open court, after notice to them, of defendants’ counsel; and (3) that the matter proceeded to trial, and judgment was entered on the evidence.
In his seventh defense, which the majority seems to think sufficient to present an issue as to jurisdiction, the defendant makes no claim that the court was without jurisdiction of the person of the defendant and the subject matter of the suit. The only claims are procedural: (1) that he did not have notice that the judgment was going to be taken against him; (2) that he was not tried by a jury; (3) that he was not notified that the judgment had been rendered;
The two hooks on which the majority opinion depends, (1) that, the defendant having answered, a default judgment could not be taken against him; and (2) that, defendant having demanded a jury, the failure to try the cause to a jury, rendered the judgment void, are not, in my opinion, sufficient to support it.
As to the first,
If I am correct in this, and the first hook fails, it is quite plain that the second hook fails also, for it is well settled that where there is a default, neither party has the constitutional right to jury trial. 3 Moore‘s Federal Practice, p. 3167. In 49 C.J.S., Judgments, § 431, at page 856, the following appears: “* * * it is no ground of collateral objection that the action was tried by the court alone, where it was properly triable by a jury, or vice versa * * *“. Two cases directly in point are Halligan v. Carlson, 105 Conn. 245, 135 A. 39; and Peters v. Sturmer, 263 Mich. 494, 248 N.W. 875.
I think it most unfortunate for defendant that if he had a defense to the suit he did not appear and present it. I think it more unfortunate that his neglect to make his defense is by the majority opinion converted into a meritorious defense to the enforcement of the judgment. I respectfully Dissent.
B. F. BASS v. Edna Pearl BAILEY
No. 12395
United States Court of Appeals Fifth Circuit
Jan. 18, 1949
Rehearing Denied Feb. 28, 1949
Dwight Whitwell and Roland Boyd, both of McKinney, Tex., for appellant.
Carlisle Blalock, of Dallas, Tex., for appellee.
Before HUTCHESON, SIBLEY, and MCCORD, Circuit Judges.
SIBLEY, Circuit Judge.
This record is identical with that in Bass v. Hoagland, 5 Cir., 172 F.2d 205, this day decided, except that the plaintiff in the judgment here sued on is named Edna Pearl Bailey and the amount she sued for and recovered in the Kansas court was $15,475. Everything we said in the opinion in Hoagland‘s case exactly applies here. For the reasons therein stated the judgment appealed from is set aside and the cause remanded for further proceedings not inconsistent with the opinion of this court.
Reversed and remanded.
HUTCHESON, Circuit Judge, (dissenting).
I dissent for the reasons given in my disent in Bass v. Hoagland, 5 Cir., 172 F.2d 205.