1. By the law of Oklahoma, where a person against whom a default
judgment is rendered files a petition to vacate the judgment upon
the ground that the court had no jurisdiction of the defendant, and
the petition is based also on nonjurisdictional grounds, such as
that the judgment was obtained by fraud or that the party was
prevented from defending by unavoidable casualty or misfortune, the
filing of the petition operates as a voluntary general appearance,
with the same effect as if such appearance had been made at the
trial. P.
276 U. S.
133.
2. A judgment based on this ground is not reviewable by this
Court, although, in rendering it, the state court also overruled
the petitioner's contention that the service of process in the
action was void under the Fourteenth Amendment. P.
276 U. S.
133.
Certiorari to
122 Okla. 125
dismissed.
Certiorari, 274 U.S. 729, to a judgment of the Supreme Court of
Oklahoma affirming a judgment which denied the petition of a
foreign corporation to set aside a default judgment rendered in an
action based on substituted service of summons.
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
A statute of Oklahoma provides that, if a foreign corporation
doing business within the state fails to appoint an agent upon whom
service may be made, process served upon the Secretary of State
shall be sufficient to give jurisdiction of the person to any court
having jurisdiction of
Page 276 U. S. 129
the subject matter. Compiled Oklahoma Statutes 1921, §§ 5436,
5442.
In September, 1920, Scott, a resident of Oklahoma, brought in a
district court of the state an action of contract against the Geo.
O. Richardson Machinery Company, a Missouri corporation. He alleged
in his petition that the defendant was a foreign corporation doing
business in Oklahoma, and that it had failed to appoint an agent
upon whom process might be served. He asked leave to serve the
summons upon the Secretary of State as provided in the statute.
There was a praecipe for summons pursuant to the statute; the
summons issued, and it was served as in the statute provided. The
defendant having failed to enter an appearance within the time
limited, judgment by default was, in October, 1920, entered for the
amount claimed.
In July, 1921, which was after the expiration of the term at
which the judgment was entered, the corporation filed what it
called a "special appearance and motion to quash summons and
service thereof and to set aside and vacate judgment." The motion
set forth that the corporation had not had actual notice of the
action or the judgment; that, for this reason, it had not had an
opportunity to defend; that it had and has a valid defense to the
cause of action sued on; that it is not indebted to the plaintiff
in any amount, and that, if it had had notice, it would have
interposed a defense. It alleged further that it had never engaged
in business within the state; that it does, and has done, with
residents of Oklahoma a purely interstate business; that the
Secretary of State was not by contract or law its agent upon whom
service could be made; that the statute authorizing service upon
the Secretary of State was, as applied to it, a violation of the
due process clause of the Fourteenth Amendment, and that the trial
court had no jurisdiction. It prayed that the
Page 276 U. S. 130
summons and return be quashed and that the judgment rendered be
set aside.
The proceedings which followed the filing of this motion to
quash and vacate extend over a period of more than six years. The
report of them occupies more than 200 pages of the printed record.
Immediately after filing the motion, the corporation sought from
the state district court, and obtained, an order removing the cause
to the federal court on the ground of diversity of citizenship.
There, the case was heard on the motion to quash the summons and
vacate the judgment. On April 27, 1922, after proceedings which it
is unnecessary to detail, the federal court remanded the cause to
the state court because the petition for removal had not been filed
in time.
On June 1, 1922, the case came on for hearing in the state court
on the motion to quash the summons and to set aside the judgment.
The motion was overruled, and exceptions were allowed. Then the
corporation was granted leave to file
instanter a
petition, under § 810 of the Compiled Statutes of 1921, to vacate
the judgment. That section provides that the district court shall
have power in nine classes of cases to vacate or modify its own
judgments or orders at or after the term at which such judgment or
order was made. Among these are: "Fourth. For fraud, practiced by
the successful party, in obtaining the judgment or order," and
"Seventh. For unavoidable casualty or misfortune, preventing the
party from prosecuting or defending."
On the same day, a new pleading entitled "Petition to Vacate
Judgment" was filed. This petition did not contain an allegation
that the corporation's appearance was special and solely to contest
the jurisdiction of the court, nor did it seek to quash the summons
issued and served. In addition to allegations made in the motion
filed in July, 1921, the new petition alleged that the service was
based
Page 276 U. S. 131
upon an allegation fraudulently made that the corporation was
engaged in business in Oklahoma within the meaning of the statute
relative to service; that the judgment was rendered upon false and
fraudulent testimony given in support of the allegation that the
defendant was indebted to the plaintiff; that in fact plaintiff was
indebted to the corporation in the sum of $29.10; that, if it, the
corporation, violated the state law by failing to appoint an agent,
it had done so unconsciously; that, in any event, it was entitled
to be notified of the pendency of the action; that, by fraud the
plaintiff concealed from it the fact that the action had been
instituted, and that there was no duty devolving upon the Secretary
of State to notify it. It alleged further, as required by § 814 of
the Compiled Statutes, that it had a meritorious defense; that this
would have been interposed if it had known of the pendency of that
action; that, if permitted now to appear and defend, it could and
would establish the defense. Annexed to the petition was a copy of
the answer which the corporation proposed to file if its prayer to
vacate the judgment should be granted. This answer included a
counterclaim for the small balance alleged to be due to the
corporation. The petition alleged further that a levy upon the
corporation's property to enforce the judgment was threatened,
offered a bond conditioned to pay the judgment, if sustained, and
prayed for a stay of execution pending a hearing on the petition to
vacate. As final relief, the petition prayed that the judgment be
vacated, that the corporation be permitted to file the answer
annexed and make proper defense, and that it have other and proper
equitable relief.
To this petition to vacate a demurrer was interposed. There was
a hearing upon the demurrer; it was sustained; the petition was
dismissed upon refusal of the corporation to plead further, and, on
June 19, 1922, a stay of the execution,
Page 276 U. S. 132
pending an appeal, issued. In October, 1924, the Supreme Court
of Oklahoma reversed the judgment dismissing the petition to
vacate. Its decision was rested solely upon the ground that, under
the statute, the Secretary of State was required to give the
defendant corporation notice of the service of the summons upon
him; that he had failed to do so; that, since the corporation
lacked actual knowledge, there was an "unavoidable casualty or
misfortune, preventing the party . . . defending," as defined in
subparagraph seventh of § 810 of the Compiled Statutes of Oklahoma,
and that therefore the case should be remanded for further
proceedings. In December, 1925, a rehearing was granted.
In November, 1926, the Supreme Court of Oklahoma reversed itself
and affirmed the judgment of the trial court dismissing the
petition to vacate. 251 P. 482. In its second opinion, it recited
the claim that the statute authorizing service upon the Secretary
of State violated the due process clause of the Fourteenth
Amendment; stated that the validity of the statute had been
sustained in
Title Guaranty & Surety Co. v. Slinker,
42 Okl. 811, which was binding upon it; and, then exercising
jurisdiction, it held that relief could not be had under clause
seventh of § 810, because the corporation's lack of knowledge of
the commencement of the action was not due to "unavoidable casualty
or misfortune," but to its own failure to appoint an agent as
required by the law of the state. As leading to that conclusion, it
held further that the Secretary of State was not under a duty to
send notice of the summons.
This Court, being of opinion that the constitutionality of the
statute concerning service, as so construed, was questionable, and
that the question of its validity was one of general importance,
granted the petition for a writ of certiorari. 274 U.S. 729.
Further study of the record discloses that the discussion by the
state court of this
Page 276 U. S. 133
constitutional question was unnecessary to the result reached by
it. The jurisdictional question -- and hence the constitutional
question -- had already been eliminated earlier in the opinion. For
the court had held that, by filing the petition to vacate under §
810, the corporation had, in effect, entered a general appearance.
This was true because embodied in the petition were several
nonjurisdictional grounds of relief, including, among others,
fraudulent conduct on the part of the plaintiff and the
meritoriousness of the corporation's defense, and because the
corporation sought affirmative relief against the original
plaintiff.
Since the founding of the state, it has been the settled law of
Oklahoma that, where a person against whom a judgment is rendered
files a petition to vacate the judgment upon the ground that the
court had no jurisdiction of the defendant, and the petition is
based also on nonjurisdictional grounds, such as those mentioned in
subparagraphs fourth and seventh of § 810, the filing of the
petition operates as a voluntary general appearance, with the same
effect as if such appearance had been made at the at the trial.
* It was probably
because this rule had been so long settled that the Supreme Court
of Oklahoma deemed it unnecessary to enlarge upon the subject or to
cite any of the many cases in which the rule had been acted on.
As the decision of that court was rested, and may rest, on this
rule -- an adequate nonfederal ground -- the writ must be
dismissed.
Bilby v. Stewart, 246 U.
S. 255,
246 U. S. 257;
Doyle v. Atwell, 261 U. S. 590,
261 U. S.
591.
Dismissed.
*
Rogers v. McCord-Collins Mercantile Co., 19 Okl. 115;
Lookabaugh v. Epperson, 28 Okl. 472;
Welch v.
Ladd, 29 Okl. 93, 98;
Ziska v. Avey, 36 Okl. 405,
408;
Pratt v. Pratt, 41 Okl. 577;
Hill v.
Persinger, 57 Okl. 663;
Myers v. Chamness, 102 Okl.
131;
Burnett v. Clayton, 123 Okl. 156.