A party against whom a default judgment had been rendered in the
district court eighteen months previously applied there to have it
set aside for lack of personal jurisdiction, alleging that there
was no service and that the return of service upon which the
default was based was unauthorized and false. After hearing the
application and affidavits, the court sustained its jurisdiction to
enter the judgment and overruled the application.
Held
that the proceeding to set aside the judgment amounted to an
independent action, and that the question of jurisdiction, as it
related only to the power of the court in the original action,
could not be made the basis of a direct writ of error under
Judicial Code § 238 to determine the correctness of the order
overruling the application.
Writ of error dismissed.
The case is stated in the opinion.
Page 245 U. S. 211
MR. JUSTICE DAY delivered the opinion of the Court.
On October 4, 1913, the defendants in error brought suit in the
United States District Court for the Eastern District of Oklahoma
against the Stevirmac Oil & Gas Company and Virgil Hicks to
recover a money judgment. Process was issued naming November 3,
1913, as answer date. On October 15, 1913, the marshal made return
certifying that he had delivered a copy of the summons to Virgil
Hicks, treasurer, in person, and that the other defendant named was
not served. On November 25, 1913, the court ordered the marshal to
amend the return to conform to the facts, and thereupon the marshal
amended his return so as to certify that he had served the
Stevirmac Oil & Gas Company by leaving a copy of the summons
with Virgil Hicks personally and as treasurer of the company at
Sapulpa, Oklahoma, in said district, on October 13, 1913, the
president, chairman of the board of directors, or other chief
officer not being found in the district, and Virgil Hicks being in
charge of the place of business of the corporation.
On December 1, 1913, the court rendered judgment by default
against the Stevirmac Oil & Gas Company. Under the laws of
Oklahoma, service can be made upon a corporation's treasurer only
when the president, chairman of the board of directors, or other
chief officer cannot be found in the jurisdiction, and this fact
must be stated in the return.
Cunningham Commission Co. v.
Rorer Mill & Elevator Co., 25 Okl. 133.
Page 245 U. S. 212
About eighteen months after the default judgment, the Stevirmac
Oil & Gas Company filed an application to set aside the default
judgment; it was averred that the Stevirmac Oil & Gas Company,
a corporation, was named in the summons issued with Virgil Hicks;
that, on October 13, 1913, the United States Marshall delivered to
said Virgil Hicks at Sapulpa, Oklahoma, a copy of the summons;
that, at that time, H. H. McFann was the president of the
corporation, and was in the Town of Sapulpa, was well known
therein, and had a regular place of business and residence in said
town; that Virgil Hicks was not in charge of the place of business
of the defendant corporation; that, at the time of the delivery of
the copy of the summons to him, the marshal did not tell or inform
him in any way that the copy was for the defendant, the Stevirmac
Oil & Gas Company, or that said delivery was intended for
service upon said defendant corporation, and that Virgil Hicks
understood and believed that the service was upon him individually;
that the United States Marshal inquired of Virgil Hicks for the
name of the president of the defendant corporation and where he
could be found, and was told that H. H. McFann was the president of
the corporation, was then in Sapulpa, Oklahoma, wherein he could be
found; that this constituted all the service of summons made in the
case; that no service was ever made on McFann or upon the Stevirmac
Oil & Gas Company; that, on October 15, 1913, the marshal made
return certifying that he had delivered a copy of the return to
Virgil Hicks, treasurer, in person at Sapulpa, Oklahoma, the other
defendant named "not served;" that, on November 25, 1913, without
notice to the Stevirmac Oil & Gas Company the court made an
order requiring or directing the marshal to amend the return to
conform with the facts; that thereafter the return was amended so
as to certify that the summons had been served upon the Stevirmac
Oil & Gas Company by handing to and leaving a true
Page 245 U. S. 213
and attested copy with Virgil Hicks personally, treasurer of
said corporation at Sapulpa, Oklahoma, on October 13, 1913, the
president, chairman of the board of directors, or other chief
officers not being found in the district; that the said Virgil
Hicks was the person in charge of the place of business of the
defendant corporation; that the said marshal had not at any time
served the said summons on the Stevirmac Oil & Gas Company;
that plaintiff in the original suit caused and procured said false
amended return to be made by the said marshal; that the Stevirmac
Oil & Gas Company had no notice nor knowledge of the said order
of the court amending said return until long after the judgment was
rendered; that the record does not show that the marshal asked
leave of court, or that the court granted leave, to make such
amended return; that it is true that the court ordered the marshal
to amend the original return; that said return was complete upon
its face, and that the court had no power to order the marshal to
make another or different return; that therefore said judgment was
obtained without service of process upon the Stevirmac Oil &
Gas Company as required by law, and is void. The Stevirmac Oil
& Gas Company filed certain affidavits in support of this
application.
Upon hearing the application, with accompanying affidavits, the
court refused to set aside the former judgment and overruled the
application of the Stevirmac Oil & Gas Company. The court made
a certificate setting forth that the order refusing to set aside
and vacate the judgment rendered December 1, 1913, involved and
determined the question whether the court had jurisdiction over the
person of the Stevirmac Oil & Gas Company, it being contended
that the court had no jurisdiction to render said judgment, on
account of lack of jurisdiction of the person of the defendant, and
that the order entered was a denial of that contention.
The case is brought here solely upon the question of
Page 245 U. S. 214
the jurisdiction of the district court. It was submitted upon
briefs which argue the question of the authority of the court to
order the amendment of the return and thereby acquire jurisdiction
over the Stevirmac Oil & Gas Company. The plaintiff in error
contends that the proceeding to vacate the judgment was in effect a
separate proceeding, and as it resulted in a judgment refusing to
vacate the former judgment, the latter is final and reviewable
here. We agree that it is a final judgment, reviewable in the
proper court. The question now presented is whether it can be
reviewed by direct writ of error from this Court to the district
court. This Court looks after its own jurisdiction, whether the
point is raised by counsel or not.
Mansfield, Cold Water &
Lake Michigan R. Co. v. Swan, 111 U.
S. 379. Section 5 of the Court of Appeals Act of 1891,
now Judicial Code, § 238, 36 Stats. 1157, provides for direct
appeals to and writs of error from this Court in cases in which the
jurisdiction of the district court is in issue, in which case the
question of jurisdiction only must be certified here for decision.
Such appeals or writs of error do not bring here the merits of the
controversy, and impose upon this Court the single duty of
determining whether the district court had jurisdiction of the
case. In the present case, while it is certified that the
jurisdiction of the court rendering the original judgment was
presented and decided against the contention of the plaintiff in
error, it is apparent that no question is made concerning the
jurisdiction of the court to entertain the proceeding to set aside
the former judgment, and that the real controversy arises from the
attack upon the authority of the court to order an amendment of the
marshal's return, and to render the original judgment. In such
cases, we are of opinion that former decisions of this Court have
settled the construction of the statute to be against the right to
entertain direct appeals or writs of error upon the question of
jurisdiction.
Page 245 U. S. 215
Carey v. Houston & Texas Central R. Co.,
150 U. S. 170,
presents an action upon a bill in equity to impeach and set aside a
decree of foreclosure in the circuit court on the ground of fraud.
It was held that no question of jurisdiction over that suit could
be availed of to sustain a direct appeal to this Court under § 5 of
the Court of Appeals Act. In that case, Mr. Chief Justice Fuller,
speaking for the Court, expounding the fifth section of the Act of
March 3, 1891, said:
"But the fifth section of the Act of March 3, 1891, does not
authorize a direct appeal to this Court in a suit upon a question
involving the jurisdiction of the circuit court over another suit
previously determined in the same court. It is the jurisdiction of
the court below over the particular case in which the appeal from
the decree therein is prosecuted that, being in issue and decided
against the party raising it and duly certified, justifies such
appeal directly to this Court. This suit to impeach the decree of
May 4, 1888, and to prevent the consummation of the alleged plan of
reorganization was a separate and distinct case, so far as this
inquiry is concerned, from the suit to foreclose the mortgages on
the railroad property, and no question of jurisdiction over the
foreclosure suit or the rendition of the decree passed therein can
be availed of to sustain the present appeal from the decree in this
proceeding."
"The collusion and fraud charged in the institution and conduct
of the prior litigation, and in the procurement of the decree
against the railroad company, and in the other transactions in
respect of which relief was sought against the defendants, seem to
form the gravamen of the case, but whether the bill be treated as a
bill of review, an original bill of the same nature, or an original
bill on the ground of fraud, it was a distinct proceeding in which
the moving parties were shifted, and the fact that it put in issue
the jurisdiction in the proceedings it assailed would
Page 245 U. S. 216
not change the appeal from this, into an appeal from the prior
decree."
That case was followed and approved in
In Re Lennon,
150 U. S. 393,
wherein Lennon filed a petition in habeas corpus in the Circuit
Court of the United States for the Northern District of Ohio
seeking to be relieved from punishment for contempt because of
violation of an injunction issued in the same court, upon the
ground that the court had no jurisdiction in the original case in
which the order had been issued, and had no jurisdiction over the
person of Lennon because he was not a party to the original suit,
not having been served with process. This Court held that, while
the proceeding in habeas corpus undertook to attack the
jurisdiction of the court to make the order, the right to entertain
the petition for habeas corpus was not in issue, but, on the
contrary, jurisdiction had been entertained, and conceding that the
jurisdiction to discharge the prisoner would depend upon want of
jurisdiction to commit in the original case, still that would not
present a question reviewable by direct appeal in the habeas corpus
suit.
See also Empire State -- Idaho Mining & Developing
Co. v. Hanley, 205 U. S. 225,
205 U. S.
232.
The plaintiff in error correctly contends that the proceeding to
set aside the original judgment is in effect an independent action,
and the judgment therein final and reviewable. The proceeding to
set aside the original judgment is based upon the theory that no
jurisdiction was acquired over the Stevirmac Oil & Gas Company
by the service of the process as amended by the court's order, and
hence the company was never properly subject to the jurisdiction of
the court in the original suit. No contention is made that the
court could not entertain the proceeding to set aside that
judgment; indeed it did entertain jurisdiction, and decided against
the contention of the plaintiff in error. In such case, we have no
doubt that, in view of the nature of the attack made upon the
original
Page 245 U. S. 217
judgment, the judgment in the present proceeding was final, and
reviewable in the court of appeals.
Rust v. United Waterworks
Co., 70 F. 129. But the attempt now made is to convert the
writ of error into a means of reviewing the question of the
jurisdiction of the court to render the original judgment. For the
reasons stated, and following the construction of the statute
already given, the writ of error must be dismissed, and it is so
ordered.
Dismissed.