# Bass v. Hoagland > Court of Appeals for the Fifth Circuit · January 18, 1949 · 172 F.2d 205 URL: https://www.frixlaw.com/law-library/cases/9650970 ## Case - **Full name:** Bass v. Hoagland - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** January 18, 1949 - **Citations:** 172 F.2d 205; 1949 U.S. App. LEXIS 2670 - **Precedential status:** Published - **Opinion:** Dissent by Hutcheson - **Judges:** Hutcheson, Sibley, McCord - **Cited by:** 188 later opinions in the Frix Law Library ## Citator (automated) - **Yellow flag:** Questioned by City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 (2011). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9650970 ## How later opinions describe it (automated extraction) - holding that a default judgment was void for lack of due process where the defendant had no notice of the default, no opportunity to present evidence on damages, a jury was denied although demanded, the default was entered solely as a result of the attorney's failure to appear… - concluding that failure to provide notice under Federal Rule 55 to defaulting party was error and “[t]o get such a judgment without evidence and without notice is not in our opinion due process of law” - explaining that “[t]he words ‘otherwise defend’ refer to attacks on [] service [of process] . . . and the like, which may prevent default without presently pleading to the merits.” - concluding that default judgment was void on due process grounds where defendant filed an answer, but did not receive notice of the plaintiff's motion for default judgment ## Opinion text 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, 1 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 principles 1 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 to1 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 support 2 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 judgment 3 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; *212 and (4) in direct conflict with its recitations that evidence was heard, that the judgment was entered without hearing evidence. 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, Rule 55(a), Federal Rules of Civil Procedure, declares that a default may occur by failure “to plead or otherwise defend”. It seems clear to me that -if, as the judgment recites, defendant’s counsel had, on notice to him, withdrawn from the case, and defendant had not appeared to defend it, the defendant was in default. If-1 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. Stunner, 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 bis defense is by the majority opinion converted into a meritorious defense to the enforcement of the judgment. I respecfully Dissent. Cf. 50 C.J.S., Judgments, §§ 849, 855; 31 Am.Jur., “Judgments”, 818, 824 and 825. See also 49 C.J.S., Judgments, §§ 431, 432. Hovey v. Elliott, 167 U.S. 409 , 17 S.Ct. 841 , 42 L.Ed. 215 ; Windsor v. McVeigh, 93 U.S. 274 , 23 L.Ed. 914 ; Wetmore v. Karrick, 205 U.S. 141 , 27 S.Ct. 434 , 51 LEd. 745. “In the District Court of the United States for the District of Kansas, Second Division. Edna Pearl Bailey, Plaintiff vs. B. F. Bass and Harold S. Alderman, Defendants. No. 2031. Journal Entry. “Now on this 13th day of December, 1943, this matter comes on in regular order for trial, the plaintiff being present by her attorneys, Howard T. Fleeson and Paul R. Kitch, and the defendants being present neither in person nor by attorney but being in default by reason of the withdrawal of Cowan, McCorkle, Kahrs & Nelson and-W. A. Kahrs, which withdrawal had been previously made in open Court by said attorneys after notice to said defendants. Thereupon it was slated by counsel for plaintiff that an affidavit had been prepared to the effect that neither of said defendants was in military service and that there was no necessity for the appointment of counsel to represent the defendants under the terms of the Soldier’s and Sailor’s Civil Relief Act [50 U.S.O.A.Appendix, § 501 et soq.]. 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 and that said judgment should be entered. It is therefore by the Court Considered, Ordered and Adjudged, that the plaintiff Edna Pearl Bailey have and recover of and from the defendants B. F. Bass and Harold S. Alderman and each of them judgment in the sum of $15,475.-00 and .costs of this action. (S.) Stephens. Chandler, Judge.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9650970. Public record. Not legal advice.