Petitioners Brief — Butler v. McKey

Iu the Supreme Court

OF THE

United States

OcTOBER ‘TernM, 1943

No.

James W. Burier, Mary L. Burner, Mary

SEQUIN, Chara Verscuoor, Lintian Frrz-

GERALD, Davin J. Lewis, Evizaneru A.

Lewis, Jonn Linaie Smiru, Evia Rerun

SmivrH, Patrick J. LEonarD, ANNIE LEON-

ARD, STEPHEN C. Perry, Carte HiIne-

BRAND, Mrs. C. C. FE. Hintesnranp, Frep

Hussty, Mrs. H. L. Goocn, Oscar Swan-

son, Marvin Wanrer Warer, Grorcr W.

IRVINE, Berry Du Bors, Mrs. lL. B. Braw-

LEY, MarGcaret JOHNSTONE, JAMES J.

PHELAN, J. H. Pecram, Mrs. J. H. Prc-

RAM, Marie C. Knrer, Amos WasuINc-

TON, DororuHy Lewirz, Marie (. Cross,

VioLerteE M. Cross, Cuartes L. Forsr-

BERG, and Manger McNaut,

Respondents,

VS.

Grace APPLETON McKey,

}

/

Petitioner. |

BRIEF IN SUPPORT OF PETITION.

14

THE FACTS.

The default judgment in this case was predicated

upon a service by publication, in the manner pro-

vided for in Seetion 412 of the California Code of

Civil Procedure.

The question before the District Court and before

the Circuit Court of Appeals, was whether the affi-

davit of one Fred S. Herrington, was a_ sufficient

base for the order for publication, so that by publi-

cation jurisdiction was obtained against petitioner

herein.

As we have shown in the petition (p. <..), Rule

4(d) of ‘Federal Rules of Civil Procedure”’ pro-

vides that service by publication shall be made ‘‘in

the manner prescribed by any statute of the United

States or in the manner prescribed by the laws of the

state in which service is made.”’ 20 U.S. C. A. 383.

Since there is no federal statute for service by

publication, on one who cannot be found within the

state, California law applies in the present instance,

as the Court of Appeals concedes in its opinion.

Section 412 of the Code of Civil Procedure requires

that before an order for publication can be lawfully

made, the fact that the defendant cannot be found

within the state or is secreting him or herself, must

appear by ‘‘affidavit’’, and it must also appear by

affidavit that

‘there has not been filed, on behalf of such per-

son (the defendant) * * * either in the County

in which such action was brought, or in the

County in which such action is pending, the cer-

EO EAS EAA PLN OTE FPO AO RAN Re ARIAT HSL ILENS TEIN

15

tificate of residence provided for by Section 1163

of the Civil Code * * *,”’

Herrington’s affidavit (the only affidavit filed) upon

which the order for publication was based, recites

that he had seut the summons to the U. 8. Marshal

and relates what the Marshal reported hack, and

that he had sent an alias summons to a process server

in Los Angeles, California, and what. the process

server wrote to affiant with reference to his pur-

ported attempts to serve -defendant—and_ winds up

with the conclusion that the defendant (petitioner

herein) was avoiding service and could not be found

in California. (R. 46.)

The affidavit, in a futile effort to comply with the

last above quoted provision of Section 412. states:

“that affiant is informed and believes and there-

fore alleges the fact to be that there has not

heen filed by said defendant, or on her behalf,

in the City and County of San Francise ‘o, State

of California, where said action was brought

and is pending, a certificate of residence ag pro-

vided for in Section 1163 of the Civil Code of

California.”’ (R. 57.)

It will thus be seen that whether the trial Court

acquired jurisdiction over petitioner herein depends

upon whether under California law jurisdiction is

obtained of the person of the defendant where the

affidavit upon which the order for publication of

summons is based, is one of hearsay,

16

COURT OF APPEALS’ DECISION.

The Cireuit Court of Appeals’ opinion says that

under California law an order for publication of

summons, based upon hearsay, is bad against a direct

attack, but invulnerable to a collateral attack (R.

112), and that while petitioner’s attack on the judg-

ment ‘tis a direct attack’? it was made after the

time for appeal had expired (because perchance peti-

tioner did not know of the existence of the judgment

until after the appeal period had long expired), and

therefore *‘must be considered under the principles

applicable to a collateral attack’’. (R. 112.)

CALIFORNIA DECISIONS CONTRARY TO COURT OF

APPEALS’ DECISION.

The Supreme Court of California in Kahn v. Mat-

thai, 115 Cal. 689, at 693, held that an affidavit which

recited efforts of 5 different persons (other than

affiant) to locate and serve defendants, was not an

‘‘affidavit’’, as meant in Section 412 of the Code of

Civil Procedure, and

‘hence that the Court below failed to obtain

jurisdiction of the person of the defendant.”

In the case of In re Behymer, 130 Cal. App. 200

(1933), one of California’s District Courts of Appeal

held that an affidavit reciting the efforts of someone

else to locate and serve a defendant was insufficient

upon which to base a substituted or published ser-

vice, and that the judgment based upon such a service

was ‘“‘void’’ and that the Court could ‘‘at any time

properly set it aside

°°?

, saying:

17

“a judgment or order void on its face may be

vacated on motion at any time, or the Court may

on its own motion, set it aside or disregard it,

regardless of how the invalidity is brought to

its attention; a judgment or order is said to be

void on its face, when the invalidity is apparent

upon an imspection of the judgment roll.”’

In Columbia Serew v. Warren Lock Co., 138 Cal.

445 (cited by us in the petition), the Supreme Court,

after commenting that when the statute uses the word

“affidavit’’, in Section 412, ‘it means more than an

affidavit as to what some one told the party making

the affidavit’, held that an order based upon such

an affidavit is void, and that therefore jurisdiction

was never obtained over the defendant and the judg-

ment *‘should not be enforced in any manner’’. (449)

CASES RELIED UPON IN OPINION DO NOT SUPPORT COURT

OF APPEALS’ OPINION THAT THE AFFIDAVIT IS SUFFI-

CIENT.

In Rue v. Quinn, 137 Cal. 651 (1902) (cited in Court

of Appeals” opinion, R. 112), the affidavit was only

partly hearsay—the remainder of the judgment

showed a personal search by the affiant. In that case

the Court held that,

“A motion to set aside a judgment upon the

ground that it appears upon the face of the

judgment record that the Court had no Juris-

diction of the person of the defendant is a direct

attack upon the judgment and is not barred by

mere lapse of time.’ (p. 654.)

18

Furthermore, that Court held that if the defect

appeared on the face of the judgment roll, it did

not make any difference whether the attack was

direct or collateral. (654) In the case at bar, since

Section 412 of the California Code of Civil Proce-

dure makes the proof by affidavit essential, and since

Section 670 of the same code requires the affidavit

to be a part of the judgment roll, the attack, even if

collateral, stands on an even footing with a direct

attack.

In Ligare v. California R. R. Co., 76 Cal. 610

(1888) (see Court of Appeals’ decision, R. 112), the

affidavit was not attacked on the ground of hearsay,

but the Court passed on the question whether

the degree of diligence shown was sufficient. The

Court held that the affidavit was probably insufficient

on appeal, but was good on collateral attack. The

attack in that case was a true collateral attack upon

a judgment, when its use was sought in another case.

THE COURT OF APPEALS MISINTERPRETS CALIFORNIA LAW

IN DECLARING THAT AN ORDER BASED UPON A HEAR-

SAY AFFIDAVIT IS VOID UNDER DIRECT ATTACK AND

VALID UNDER COLLATERAL ATTACK.

The reasoning of the Court below is incompre-

hensible to us. We respectfully believe that it was

misled into error by selecting sentences from several

decisions and lifting them out of their text and ap-

plying them in a sense not contemplated by the

authors of the opinions.

19

Before petitioner petitioned the Court of Appeals

for a rehearing, that Court’s finding on the question

involved read as follows

“It seems evident that in California an affi-

davit based on information and belief would

support an order for publication of summons.

Two California Sides Court decisions very

definitely hold that the hearsay nature of facts

stated in an affidavit may be considered by the

judge in drawing his couclusion as to due dili-

gence, but that such a hearsay affidavit does not

automatically render the judgment void. Rue v.

Quinn, 137 Cal. 651; Ligare v. California South-

ern Rr. Co., 76 Cal. 610. Directly contra to this

principle is Kahn v. Matthai, 115 Cal. 689, and

perhaps Columbia Screw Co. v. Warner Lock

Co., 138 Cal. 445.”’

On the petition for rehearing we called to the

Court’s attention the fact that Columbia Screw Co.

v. Warner Lock Co., 138 Cal. 445, which the Court

said was ‘‘perhaps’’ directly contrary to the **prin-

ciple’? it was adopting, was rendered later in_ point

of time than the latest case the Court was relying

on, namely Rue v. Quinn, 137 Cal. 651, and therefore

was the law of California on the point.

The Court denied a rehearing but modified the

judgment by striking out the words ‘and perhaps,

Columbia Screw Co. v. Warner Lock Co."*, and sub-

stituting the following:

ws * * Columbia Serew Co. v. Warner Lock

Co., 138 Cal. 445, held on direct appeal that

judgment based upon hearsay statements in the

affidavit for the publication of summons could

wa

ie.

20

be set aside. It does not overrule Rue v. Quinn,

supra, holding that on similar facts such a judg-

ment could not be set aside on collateral attack.

. ? 9 1. tee)

(N.B. We cannot give Record references to the

above quoted portion of the opinion as it read before

its amendment by the Court, for the reason that we

have been advised that the record must contain only

the decision as modified, after hearing of petition on

rehearing. )

It will be observed that in the forepart of the

quoted language, the Court limited its holding to

“e

cases in which the attack on the judgment is ‘‘col-

lateral’’.

Later in the opinion, the Court of Appeals says:

“The California cases support the conclusion

that on a direct appeal from a judgment an aff-

davit based upon hearsay will be found fatally

defective and the judgment will be ordered re-

versed.”’ (Kmphasis ours.)

We believe we can demonstrate that the California

Courts make no such distinetion, where the fact to

be established by the affidavit is shown by hearsay

only. But before going to the cases, we feel impelled

to attack such a statement as being entirely beyond

the realm of reasonable justice.

Necessarily the only cases in which an affidavit for

publication of summons are ever considered is where

the publication is followed by a default judgment.

Whether the defendant can appeal from the default

judgment depends on whether he discovers the fact

21

that the judgment has been taken against him or

her in time to take an appeal. If he discovers on

time and appeals, under the rule of the Court of

Appeals (and under the law of California), on such

appeal the judgment will be held void. But if (ae-

cording to the Court of Appeals and not according

to California law) the defendant doesn’t discover

that judgment has been rendered against him until

after the appeal period has past, and by necessity

attacks the judgment in the manner followed in the

case (which is in fact a direct attack as the Court

concedes (R. 112)) the judgment will be valid.

The Court of Appeals cites Forbes v. Hyde, 31 Cal.

342, 348, as California authority for the distinction,

but the California Supreme Court drew no such dis-

tinction in that case. In that case there was involved

a true collateral attack upon a default judgment, for

it was made by a stranger to the judgment and in

another action. Section 412 of the California Code

of Civil Procedure requires of an affidavit for publi-

cation of summons that it show that ‘‘a cause of

action exists against a defendant’’. The affidavit of

the plaintiff in the Forbes case recited on the point,

that

“he has a good cause of action, and that he is a

necessary and proper party defendant thereto.

as he verily believes."* (353)

The Supreme Court of California held in that case

that this was not a statement of fact, not ‘legal’

evidence, and that the default judgment entered in

the case was absolutely void. (353, 399.)

2

22

If one reads the Court of Appeals’ quotation from

the decision in the Forbes case (supra) (see opinion,

R. 113, 114), in the light of the foregoing, he will dis-

cover that when the Court in that case used the words

“legal evidence’, it meant something other than

hearsay.

And in that case the Court said the following with

reference to the right of appeal, which the Court of

Appeals says must be exercised to avoid a default

judgment, where the affidavit for publication is

hearsay :

**An appeal is no adequate remedy where a

party has no notice, for the time to appeal is

very brief and may expire before actual notice

is obtained. In the language of the Court in

Smith v. Rice, 11 Mass. 512, ‘the verv grievance

complained of is that the party had no notice of

the pending of the cause, and of course no op-

portunity to appeal.” (See, also, Bloom vy. Bur-

dick, 1 Hill. 142.)”

And what is more significant is that the Court in

Forbes v. Hyde very clearly showed that when speak-

ing of collateral attack, it was not referring to mo-

tions such as this, because it said at one point in its

opinion:

‘But as there was jurisdiction to act until

reversed, or attacked by some direct proceeding

to annul it, the order and judgment based upon

it would be valid.” (31 Cal. 348.) (Emphasis

ours. )

Incidentally this short sentence was supplanted by

three asterisks in the long quotation from that deci-

23

sion, in the Court of Appeals’ decision in the present

case. Ligare v. California R. R. Co., 76 Cal. 710, was

likewise cited in the Court of Appeals’ decision (R.

114) on this point. It was a true collateral attack,

being nade by one not a party to the judgment and

in another action. [t adopts the language just above

quoted from the Forbes v. Hyde opinion.

So no vase cited in the Court of Appeals’ opinion

supports its contention that there is any difference

under California law between attacking a default

judgment on appeal and on motion to set it aside,

where the defect is apparent from an examination

of the judgment roll.

It is true that in City of Salinas v. Lee, 217 Cal.

252, the California Supreme Court held that where

a motion to set aside a default judgment is made

after the time for appealing has expired, it is the

equivalent of a collateral attack, and to invalidate

a judgment at that late date one must be able to

direct attention to a defect appearing on the face of

the judgment roll. Here the fact that the affidavit

is required by the California Code section, and is

made a part of the judgment roll, makes that dis-

tinction immaterial.

CONCLUSION.

We respectfully submit that the Cirenit Court of

Appeals in its decision, ignored the plain import of

the pertinent California statute, and has misinter-

preted the effect of the decisions of the California

it

24

Courts, in a matter of very considerable importance

to the residents of California.

Dated, San Francisco, California,

January 24, 1944.

‘ ‘THEODORE J. ROCHE,

JAMES FARRAHER,

‘THEODORE H. RocHe,

Attorneys for Petitioner.

GeorGce A. STOCKFLETH,

Of Counsel.