This аppeal is taken by Theresa Hick-lin to reverse a judgment which denied a motion filed by her to set aside a default judgment for some $1,300 and costs rendered against her in the action in which her motion was filed. She stаted in the motion that she was never served with summons in the action either personally or by substituted service according to the statute and that the judgment and a garnishment proceeding had thereunder were void and she had a meritorious defense.
After a hearing had on the motion, the trial court rendered its decision and order (which does not appear to have been reported) as follows:
“Plaintiff instituted this suit to recover damages for rent in excess of the maximum ceiling rent on premises owned by the defendant and occupied by the plaintiff. The Marshal’s return recites that personal service was had upon thе defendant, being in words and figures as follows:
■ “ T hereby certify and return, that on the 25th day of August, 1953, I received this summons and served it together with the complaint herein as follows: on the 27th day of August by delivering a copy of the within summons with a copy of complaint attached thereto, to the within named Theresa Hick-lin, at 213 Independence Avenue, Kansas City, Western District of Missouri.’
“Thereafter a default judgment for treble damages was rendered against the defendant in an amount in excess of $1,300. More than one year after the default judgment was entered, an execution was requested by the plaintiff and issued by the clerk of the court, and the bank account of defendant attached in the hands of a bank, as garnishee.
“Thereafter the defendant filed motion to set aside the default on the ground that she had had no notice of the filing of such suit or the еntry of the judgment; that the summons was not served upon the defendant nor any person for her, within the meaning of the statute.
“Defendant supported her motion by an affidavit signed by her sister [in-law] 1 stating that she was atthe address which was described in thе return as the home of the defendant; that she was not a resident of such home; that the marshal served the complaint and summons upon her, and that she delivered it-to the husband of the defendant, from whom the defеndant was at that time estranged, and that she never received such summons or any knowledge thereof from her husband.
“It is the general rule of Federal law that the question here involved is to be determined in accordance with Federal law, but it appears that there is no Federal law on the subject in this circuit that we have been able to find. There is a division of opinion among the Federal Courts as to whether or nоt such return is binding upon the defendant. In Woods v. Zellers,9 F.R.D. 6 , a District Court in Pennsylvania followed the State law and held that such a return was binding; other decisions have held that it is only prima facie and may be collaterally аttacked. It affects the very validity of all judgments.
“It is admittedly the law in Missouri that the return of the serving officer may not be collaterally attacked, and that those who are damaged by it, must resort to an action against the serving officer for false return 2 In the absence of any Federal- authority, the law of the state is very persuasive and in the interest of uniformity should be followed. It is therefore my conclusion that the return of the serving officer is conclusive as to facts stated in the return and may not' be collaterally attacked.
“The ‘Motion to Set Aside Judgment and Proceedings’ is therefore hereby overruled.”
It is contended for Mrs. Hicklin on this appeal that the default judgment rendered against her without summons served upon her and without any notice or knowledge on her part of the pendency of the action was void and that the сourt erred in holding that the return of the serving officer was conclusive against her; that the court should have considered the showing presented in support of her motion and granted a hearing on the issue tendered by her motion as supported.
Although we, as well as the trial court, have encountered a paucity of controlling Federal decisions directly upon the precise point of procedurе that is here for decision,
3
we are satisfied that the procedure in the Federal Courts
for
setting aside allegedly void judgments of those courts is not controlled, in the ab
We hold that Rule 60(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. is applicable and controlling here. The Rule provides that “On motion and upon such terms as are just, the court may relieve a party * * * from a final judgment * * * for the following reasons: * * * (4) the judgment is void; * * * the procedure for obtaining any relief from a judgment shall be by motion аs prescribed in these rules or by an independent action.” The mandate the rule imposes on the court to relieve a party from a judgment “for the reason the judgment is void” is broad and unqualified and contains no restrictions in respect to any of the reasons that may be shown to render the judgment void. There is no room to graft an exception to the effect that if the reason for the invalidity of the judgment is a lack of service, the court is not bound by the mandate of the rule. The rule covers a judgment that is void for any reason including a lack of service.
The motion filed by Mrs. Hicklin supported by the affidavits to the effeсt that she had had no summons served upon her and had no knowledge of the pendency of the action constituted a sufficient presentation to the court of her claim that the default judgment against her was void. As was stated by the Supreme Court nearly one hundred years ago in Nations v. Johnson,
In Walden v. Craig’s Heirs,
We recognize that under Rule 4(d) (7), F.R.C.P., 28 U.S.C.A., service of summons upon an individual like Mrs. Hicklin may be made “in the manner prescribed by the law of the state in which the service is made”, but the question here involved is as to the fact of personal service upon defendant and not as to the manner of service and Rule 4(d) (7) is not relevant.
It is argued that the judgment appealed from should be sustained because Mrs. Hicklin failed to show that she had a meritorious defense, but aside from the faсt that she stated in her motion that she had such a defense, it is settled that “no showing of merits is necessary in support of a motion to vacate a void judgment.” Wise v. Herzog,
The judgment is reversed and the case remanded with direction to the District Court to grant a trial on the issue presented by Mrs. Hicklin of the validity of the judgment.
Notes
. The affidavit of the sister-in-law reads as follows:
“Helen G. Hicklin, affiant herein, being first duly sworn on her oath states that she is the sister of Claude Eugene Hick-lin; that the said Claude Eugene Hick-lin is the husband of Theresa Hicklin, the defendant in the above captioned case. Affiant states that about 8:00 in the morning of August 27, 1953, she was with her said brother, Claude Eugene Hicklin, in the home of defendant located at 213 Independence Avenue, Kansas City, Missouri. Affiant states that оn the said 27th day of August, 1953, affiant was residing at 1603 Palmer, Kansas City, Missouri, and that she has never lived at said 213 Independence Avenue, Kansas City, Missouri. That about said 8:00 in the morning of August 27, 1953, her said brother, [Claude] Eugene Hicklin, called to affiant and asked her to see the person who was at the front door; that affiant, being in the living quarters at said address, opened the door leading to a store room in the front of the premises, walked through the stоre room to the front door where an officer was standing, who said ‘Miss Hicklin?’; that thereupon affiant answered ‘yes’ and received from the officer some papers; that the officer said no more but went away after handing the said papers to affiant; that the affiant looked at the papers and determined that they were directed to Theresa Hicklin, defendant herein; that affiant thereupon turnеd the said papers over to her said brother, Claude Eugene Hicklin. Affiant further states that on’ said 27th day of August, 1953, her said brother had been drinking and was intoxicated. Affi-ant further says that her brother and his wife, Theresa Hicklin, have bеen estranged for some time; that prior to the said 27th day of August, 1953, she was suing him for divorce. Affiant further states that after handing the said papers to her said brother she did not know and does not know what subsequently happened to the said papers. Affiant further says that she left Kansas City, Missouri, to live elsewhere and was out of town from July, 1954 until on or about December 1,1954, when she moved back to Kansas City, Missouri”
. Smoot v. Judd,
. We do not find Mechanical Appliance Co. v. Castleman,