# Jones v. Preuit > Court of Appeals for the Eleventh Circuit · July 24, 1987 · 822 F.2d 998 URL: https://www.frixlaw.com/law-library/cases/8952265 ## Case - **Full name:** Samuel JONES Jr. v. PREUIT & MAULDIN, a partnership, composed of E.F. Mauldin, individually, and E.F. Mauldin, as or Administrator of the Estate of Leonard Preuit, Deceased E.F. Mauldin E.F. Mauldin as or Administrator of the Estate of Leonard Preuit, deceased and Preuit Mauldin - **Court:** Court of Appeals for the Eleventh Circuit - **Decided:** July 24, 1987 - **Citations:** 822 F.2d 998 - **Precedential status:** Published - **Opinion:** Dissent by Johnson - **Judges:** Eschbach, Hill, Johnson - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8952265 ## Opinion text JOHNSON, Circuit Judge, dissenting: I agree with the majority’s holding that Jones was entitled to preseizure notice and hearing only if P & M obtained the writs of attachment through a procedure that lacked the safeguards outlined in Mitchell v. W.T. Grant Co., 416 U.S. 600 , 94 S.Ct. 1895 , 40 L.Ed.2d 406 (1974). In Mitchell , the Supreme Court held that preseizure notice and hearing is not required if, in order to obtain a writ of attachment, the creditor must file an affidavit setting forth the specific facts entitling him to relief; if the creditor must post a bond to compensate the debtor for any damages resulting from a wrongful attachment; if the writ of attachment can be issued only by a judge with discretion to deny the writ; and, if the debtor is entitled to an immediate postseizure hearing at which the creditor must prove his entitlement to the writ. I disagree, however, with the majority’s conclusion that those safeguards were present here. Specifically, I believe that the judge who issued the writs was not vested with sufficient discretion to satisfy the dictates of Mitchell . Therefore, I would hold that Jones was entitled to preseizure notice and hearing and thus that the attachments violated his clearly established constitutional rights. The judge who issued the writs of attachment here could not inquire into the veracity of P & M’s allegations. As the majority indicates, the attachments here were obtained under Alabama’s mechanic’s lien statute. Alabama Code § 35-11-110 creates a lien in favor of a repairman against any vehicle he repairs, and Alabama Code § 35-11-111 outlines the procedures for enforcing that lien by attachment. Although Section 35-11-111 requires both the filing of an affidavit setting forth the plaintiff’s entitlement to relief and the posting of a *1007 bond payable to the defendant in case of a wrongful attachment, that section does not specify who is authorized to issue the writ. Instead, it provides only that the writ is to be issued “by any officer authorized to issue such writs.” Id. Therefore, in order to determine who can issue such a writ and what discretion the issuing officer possesses, resort must be had to the provisions of Alabama’s general attachment statute. Those provisions authorize a circuit court judge to issue a writ of attachment. Ala. Code § 6-6-43 . However, nothing in those provisions authorizes a circuit court judge to go behind a creditor’s allegations in order to determine their validity. In actions involving either the seizure of property under the detinue statute or the enforcement of a security interest, Ala.R.Civ.P. 64(b) mandates a judicial inquiry into the facts supporting the need for an attachment without prior notice. However, both Rule 64 and its Committee Comments indicate that the special procedures established therein apply only to actions in detinue or in enforcement of a security interest and that those procedures are in addition to the procedures required under the general attachment statute. 1 Consequently, in issuing a writ of attachment under Section 35-11-111, the circuit court judge’s function is solely to determine the adequacy of the plaintiff’s allegations. If the facts as alleged would entitle the plaintiff to relief, the judge must issue the writ. He cannot determine whether the allegations are in fact true. Such limited “discretion” fails to provide the meaningful judicial participation contemplated in Mitchell . The safeguards outlined in Mitchell are a substitute for prior notice and hearing because, like preseizure notice, they protect debtors against “abuse by creditors without valid claims.” 416 U.S. at 614 . Therefore, judicial participation in issuing a writ of attachment does not provide a substitute for preseizure notice unless that participation helps “minimize the risk that the ex parte procedure will lead to a wrongful taking.” Id. at 617 , 94 S.Ct. at 1905 . Judicial participation does not meaningfully reduce the risk of a wrongful attachment unless the judge can, if necessary, inquire into the truthfulness of the creditor’s allegations. Otherwise the judge’s involvement would amount to nothing more than the very type of ministerial determination that the Supreme Court has struck down as insufficient to provide due process when performed by a clerk. See North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 , 95 S.Ct. 719 , 42 L.Ed.2d 751 (1975). This is not to say, however, that a judge must put every creditor to his proof or that a creditor, prior to issuance of a writ of attachment, must prove his claim by a preponderance of the evidence. Rather, the judge must possess the ability, in the exercise of his discretion, to require more proof from the creditor than the creditor’s affidavit in deciding whether to issue a writ of attachment without prior notice to the debtor. For example, under certain circumstances the judge may wish to examine the documents giving rise to the creditor's interest in the property. If such proof is not forthcoming, the judge should be able to deny issuing the writ until the debtor is provided notice and an opportunity for a hearing. The majority reads Mitchell as requiring no more from the judge than that he determine the facial sufficiency of the allegations. They base their reading on the ground that the state sequestration statute upheld in that case allowed the judge to issue the writ “only when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts shown by verified petition or affidavit.” 416 U.S. at 616 , 94 S.Ct. at 1904 . However, nothing in that statute prohibited the court from requiring additional proof. Furthermore, the Court emphasized in Mitchell that a preseizure hearing was unnecessary because the issues involved in that case— the existence of a vendor’s lien and the purchaser’s default — were particularly suit *1008 ed for documentary proof. Id. at 617-18 , 94 S.Ct. at 1905 . That a claim is amenable to documentary proof helps reduce the risk of a wrongful attachment only if the court issuing the writ can examine any supporting documents. Therefore, I do not read Mitchell as narrowly as the majority does. Consequently, I believe that the attachments here violated Jones’s clearly established constitutional rights. Furthermore, I adhere to the remainder of the original panel opinion and believe that the award of summary judgment in favor of the defendants should be reversed. . As the majority notes, supra note 9, P & M’s action to enforce its mechanic’s lien did not constitute either an action in detinue or an action to enforce a security interest. Therefore, P & M could not have proceeded under Rule 64(b). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8952265. Public record. Not legal advice.