De Levay v. National Savings & Trust Co.

161 A.2d 465, 1960 D.C. App. LEXIS 207

• Court: District of Columbia Court of Appeals
• Decided: June 7, 1960
• Docket: No. 2530
• Status: Published

Opinions

QUINN, Associate Judge.

The basic problem in this appeal is whether compliance was had with one of the Municipal Court Rtdes.¹ Appellant argues that (1) the service of process on him was invalid, or (2) if it was valid, thus giving the court jurisdiction over him, he should have been permitted to answer the complaint. We agree with appellant’s second point only.

Appellee sued appellant for the balance due on a promissory note. The marshal served appellant on April 29, 1959, by leaving copies of the summons and complaint at his “usual place of abode,” a rooming' house located at 1707 Q Street, N. W. On May 15, 1959, appellant wrote to the Clerk of the Municipal Court protesting the validity of the service and contending that he had left said address “sometime in March.”

Thereafter, appellee filed a motion for entry of judgment pursuant to Rule 55(b). Appellant then filed an affidavit reciting, in substance, that he received notice of ap-pellee’s motion for judgment while visiting his mother in Summit, Virginia, and at that time he also received a postcard from the court concerning the date set for the hearing. Appellant stated that he was not residing at the Q Street address on April 29. It is noted that the affidavit was sworn to on September 8, 1959, before a notary in Montgomery County, Maryland, and appellant’s address was given as “General Delivery, Washington, D. C.”

At the hearing- on September 30, 1959, appellant’s counsel moved to quash service of process. Appellant testified that he had left the Q Street address in the early part of April and was living in Fredericksburg, Virginia. He admitted sending a letter, dated March 30, 1959, to appellee’s attorney, which read, in part:

“Your letter, dated March 18, 1959, and addressed to Mr. Joseph L. De-Levay and Mrs. Madeleine M. DeLe-vay, has been received. The address, Summit, R. F. D. # 3, Fredericksburg, Virginia, however, is incorrect. Mrs. Madeleine Mitchell DeLevay’s address is 2701 14th Street, N. W., Washington, D. C. I myself also, have a permanent Washington address, and in Virginia, I am staying only occasionally.”

Appellant acknowledged that the “permanent Washington address” referred to in this letter was 1707 Q Street, N. W. He first denied, and then admitted, using the Q Street address to pick up his mail after he allegedly left Washington. According to the statement of proceedings and evidence, appellant

“ * * * did know where the key to 1707 Q Street, N. W., was hidden and could gain access by its use with the landlady’s knowledge and consent; in explanation he stated that all former tenants knew where the key was kept and that he knew the landlady well and that she did not mind him entering in that manner; he further admitted that he had found the summons and complaint set aside in a place on the mantelpiece or table where his other mail was kept for him and that he had read the summons and complaint.”

From this recital of appellant’s conflicting evidence, it is apparent that a factual question relating to his place of abode was presented. The trial court concluded that the marshal’s return was valid and that appellant failed to rebut its validity. The court found, after due consideration of appellant’s credibility, that service was made at appellant’s place of abode.

The evidence supports the trial court’s conclusion, and in view of the fact that it presented a factual question, the court’s ruling will not be disturbed.² However, because appellant’s appearance was to contest the validity of the service, the judgment will be set aside and he should be given an opportunity to defend the case on the merits.

It is so ordered.

1 . Municipal Court Civil Rule 4(c) (1) provides: “[Service shall be made] upon an individual * * * by leaving copies thereof at his dwelling bouse or usual place of abode * *

2 . See generally, First Nat. Bank & Trust Co. of Tulsa v. Ingerton, 10 Cir., 1953, 207 F.2d 793; cf. Williams v. Capital Transit Co., 1954, 94 U.S.App.D.C. 221, 223-224, 215 F.2d 487, 489-490.