348 F2d 911 Freehill v. T Benn

348 F.2d 911

Mary Jo FREEHILL, Appellant,
v.
James T. BENN, Appellee.

No. 10022.

United States Court of Appeals Fourth Circuit.

Argued July 1, 1965.

Decided July 20, 1965.

Richard M. Millman, Washington, D. C., for appellant.

Norbert J. Heubusch, Arlington, Va., for appellee.

Before HAYNSWORTH, Chief Judge, and BRYAN and BELL, Circuit Judges.

PER CURIAM.

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1

Mary Jo Freehill complained of James T. Benn in the District Court in two counts. The first exhibited, and asked judgment upon, a default judgment entered by the Circuit Court for the County of Dade, Florida against Benn and in favor of Freehill. The second count pleaded the same facts and prayed the same relief as that alleged and granted in the Florida action. Benn's motion to dismiss the first count was sustained. The ground of the ruling was that the judgment was not entitled to accordance of Constitutional full faith and credit, because he had not been served with process in that action. Hence he could not be held in default for failure to appear and defend.

2

The dismissal of the first count was made final and appealable by direction of the trial court. F.R.Civ.P. 54(b). On appeal, plaintiff shows that the return of service in Florida recites that Benn was there personally and appropriately served. The presumption of the execution of the writ arising from this certificate, Freehill urges, was not overridden by the evidence adduced by Benn on the motion.

3

Defendant testified that he was never served and, in truth, was not in Florida at the time of the service as returned. This claim the District Judge found adequately corroborated by supplementing proof. As his finding is certainly not clearly erroneous, F.R.Civ.P. 52(a), we affirm his judgment.

4

The disposition of this case renders moot the appellant Freehill's motion here for a stay of the trial on Count 2 in the District Court.

5

Affirmed.