Westbrook v. Bell
Westbrook v. Bell
Opinion of the Court
This case is here for the second time. It is an action by a landlord for possession of commercial property. On the former appeal (Bell v. Westbrook, D.C.Mun.App., SO A.2d 264), we reversed a judgment in favor of the tenant. Following the issuance of our mandate the landlord moved for summary judgment in his favor. That motion was granted and the tenant has appealed.
The tenant does not question the merits of the trial court’s action in granting summary judgment, but raises questions relating to the jurisdiction of the Court over the person of defendant.- This requires consideration of certain proceedings in the case prior to the first appeal. The complaint was filed January 2, 1946. The Marshal made the following return of service of summons: “Summoned by leaving a copy hereof with a person above the age of sixteen years, in possession of the premises; the defendant not to be found.” Thereafter Mr. Ammerman, a member of the Bar, communicated with Mr. Hart, the landlord’s attorney, stating he had been retained to represent the tenant and intended filing on her behalf a suit in the District Court of the United States for the District of Columbia against the landlord, seeking specific performance of an alleged oral agreement to execute a five-year lease. The two attorneys agreed that the Municipal Court action would be held in abeyance pending the outcome of the District Court action. Mr. Ammerman signed a praecipe entering his appearance in the' Municipal Court action and mailed it to Mr. Hart. On the return day neither attorney appeared in court and according to the docket entry the case was returned to the files. Thereafter, Mr. Ammerman filed action in the District Court and procured a temporary injunction restraining the landlord from proceeding further in the Municipal Court action; Mr. Hart defended on behalf of the landlord, and after trial a judgment in favor of the landlord was entered on June 14, 1946, and the temporary injunction dissolved. On June 17 Mr. Hart notified Mr. Ammerman that he desired to proceed with the possession suit in the Municipal Court, that he was filing the praecipe entering Mr. Ammerman’s appearance in the case and was calendaring the case, for trial on June 25. The praecipe was filed June 17. On June 21 Mr. Am-
The contention is now made that the trial court was in error in overruling the motion to quash service and holding that Mr. Ammerman had entered a general appearance for the tenant. Assuming, without deciding, that the tenant is entitled to now raise the question of service, although she did not raise it on the former appeal but instead urged us to affirm a judgment on the merits in her favor, we hold that the action of the trial court was proper. Civil rule 12 of the trial court, based on rule 12 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, which in effect abolishes the distinction between general and special appearances,
The tenant also malees the point of an alleged difference between the notation on the jacket and the entry on the docket relating ’to the trial court’s action on the first return day. The entry on the docket is that the case was sent to the files. The contention seems to be that since the notation on the jacket shows no action by the court, it is: possible that the court may have dismissed the action because, under the court rule then in effect, that could have been done. Hence, it is argued that
The tenant’s final assignment of error, relating to a denial of jury trial, was expressly waived on argument here.
Affirmed.
Cooper v. Burton, 75 U.S.App.D.C. 298, 127 F.2d 741.
Schlaefer v. Schlaefer, 71 App.D.C. 350, 112 F.2d 177, 130 A.L.R. 1014. Cf. Crescent Cafe Company, Inc., v. Kass Realty Company, Inc., D.C.Mun.App., 48 A.2d 618.
Davis v. Davis, 305 U.S. 32, 59 S.Ct. 3, 83 L.Ed. 26, 118 A.L.R. 1518.
Booth v. Fletcher, 69 App.D.C. 351, 101 F.2d 676, certiorari denied, 307 U. S. 628, 59 S.Ct. 835, 83 L.Ed. 1511.
Reference
- Full Case Name
- WESTBROOK v. BELL
- Status
- Published