105 F.2d 785 | D.C. Cir. | 1939
On November 23, 1937, appellee filed suit in the District Court against appellant for breach of a contract to furnish to appellee, in the District of Columbia, the services of a certain orchestra at a dance. The summons was served upon Benjamin Kipnis, who was described in the Marshal’s return as agent of appellant. Appellant defaulted, and on January 12, 1938, judgment for $4,250 and costs was entered against it. On March 10, 1938, it appeared specially and moved to set aside the judgment on the grounds that it was a foreign corporation, doing no business in the District of Columbia; that Kipnis was not its agent; and that it was never served with process. Appellant also filed an affidavit of its secretary, Ann Richardson, that defendant had never “been engaged in doing business” in the District of Columbia; that Kipnis was never its agent, officer or employee ; and that appellant first heard of the suit in February, 1938. On April 1, 1938, the District Court overruled the motion to set aside the judgment. Defendant appealed, and plaintiff moved to dismiss the appeal.
A foreign corporation “doing business in the District” may be sued if process is served on its “agent.” D.C.Code
1929, Tit. 24, § 373. If, as appellant contends, process was never served upon it, the judgment against it is void and appellant would have been entitled to a decree enjoining the enforcement of the judgment;
The proceedings below were before the adoption of the new rules of civil procedure; and we know of no good reason why the case could not have been decided upon the motion supported by affidavits, and upon counter-affidavits,
We have, then, a case in which it is alleged that appellant is a foreign cor
The result of all this is to present the appeal in such confusion that we can make no final disposition of the case. We do not know whether oral testimony was introduced by either party at the hearing, or upon what grounds the court made its order. We feel it our duty to remand the case to the trial court with instructions to reform its order so as to show whether the motion was heard entirely on affidavits and, if so, what affidavits were filed; and if it was heard partially on affidavits and partially on oral testimony or documents, how the latter were proved; and what facts were found by the court; with permission to the court, if in its opinion it will tend to clarify the facts and the right of the case, to grant a rehearing and permit the parties on such rehearing to introduce affidavits or oral testimony.
Reversed and remanded; costs divided.
The Firestone Tire & Rubber Co. v. Marlboro Cotton Mills, 4 Cir., 282 F. 811, certiorari denied 260 U.S. 749, 43 S.Ct. 248, 67 L.Ed. 494.
Stevirmac Oil & Gas Co. v. Dittman, 245 U.S. 210, 216, 38 S.Ct. 116, 118, 62 L.Ed. 248.
This court has held that, in general, an appeal may not be taken from an order overruling a motion to vacate a judgment. Tubman v. Baltimore & O. R. Co., 20 App.D.C. 541, affirmed on other grounds, 190 U.S. 38, 23 S.Ct. 777, 47 L.Ed. 946; Swenk v. Nicholls, 39 App. D.C. 350; Dante v. Bagby, 39 App.D.C. 516; Doyle v. District of Columbia, 45 App.D.C. 90; International Bank v. Securities Corporation, 59 App.D.C. 72, 32 F.2d 968. In Hallowell v. Darling, 32 App.D.C. 405, an appeal from such an order, was heard, but the right to appeal was not discussed. In the Tubman line of cases the appellant had taken part in the original proceedings, and no excuse appeared for his failure to appeal from the original judgment. On the other hand, in the Stevirmac case, supra, and in the present case, appellant did not appear in the original proceedings, and claimed that it was never served in those proceedings. The Tubman doctrine may be distinguished on the ground that “When a motion is made to vacate an' order under such circumstances that it merely calls upon the court to repeat or overrule the former ruling on the same facts, the last order is not appealable * * * because it would be virtually allowing two appeals from the same ruling, and would, in some cases, have the effect of extending the time for appealing,” but a judgment against a defendant who “was not in court, and had no opportunity to be heard” is not within the principle. De la Montanya v. De la Montanya, 112 Cal. 101, 44 P. 345, 349, 32 L.R.A. 82, 53 Am.St.Rep. 165.
Domitski v. American Linseed Company, 221 Ill. 161, 77 N.E. 428, 429.
Gilliland v. Palatine Insurance Co.. 59 Mont. 267, 196 P. 151.