Petition — Murphy v. Sullivan

78 1121

SUPREME COURT OF THE UNITED STATES

PETITION FOR CERTIORARI

BY

NORTH GEORGIA FINISHING, INC., Petitioner

V.

DICHEM. INC., Appellee

THE FIRST NATIONAL BANK

OF DALTON, Garnishee

from

SUPREME COURT OF THE STATE OF GEORGIA

IN ITS CASE NO. 28,217

Warren N. Coppedge, Jr.

Nathaniel Hansford

MITCHELL, MITCHELL, COPPEDGE & BOYETT

101 NORTH THORNTON AVENUE

DALTON, GEORGIA 30720

ATTORNEYS FOR PETITIONER

TO THE SUPREME COURT OF THE UNITED

STATES, WASHINGTON, D.C.

PETITION FOR CERTIORARI

This is a petition to the Supreme Court of the

United States for a writ of certiorari to the Supreme

Court of the State of Georgia to submit for review

and reversal here the opinion and decision of the

Supreme Court of the State of Georgia entered October

25, 1973, in its Case Number 28217, entitied NORTH

GEORGIA FINISHING, INC., Appellant, V. DI-

CHEM, INC., Appellee; FIRST NATIONAL BANK

OF DALTON, Garnishee.

The opinion of the Georgia Supreme Court

is officially reported in 231 Georgia Supreme Court

Reports, Page 260, (1973). Writ of certiorari to the

Georgia Court of Appeals was granted by the Georgia

Supreme Court and is officially reported in 230 Georgia

Supreme Court Reports, Page 623, (1973). The decision

of the Court of Appeals of Georgia is officially reported

in 127 Georgia Court of Appeals Reports, Page 593,

(1972). This case was originally appealed from the

Whitfield County Superior Court to the Supreme Court

of Georgia which transferred without opinion to the

Georgia Court of Appeals. These opinions and notice

of denial of rehearing and notice of transfer appear

herein as an appendix, in accordance with Rule 39.

The decision of the Supreme Court of the State

of Georgia hereby appealed from was rendered October

25, 1973, denying Appellant-Petitioner’s Motion for

Rehearing of opinion entered October 4, 1973.

Jurisdiction of this Court to review this cause is

believed to exist in United States Code Title 28 Section

1257.

QUESTION PRESENTED (RULE 231(c)

Is Georgia Code Title 246 Section 101, insofar as it

provides for the taking of property without prior notice

and hearing through Process of Garnishment where suit

shall be pending but before judgment, unconstitutional

as being repugnant to the due process and equal protect-

ion clauses of the Fourteenth Amendment to the United

States Constitution?

STATE STATUTE INVOLVED (RULE 231(d))

Georgia Code Annotated Section 46-101.

“Right to writ; wages exempt until after final

judgment — In cases where suit shall be pending, or

where judgment shall have been obtained, the plaintiff

shall be entitled to the process of garnishment under

the following regulations: Provided, however, no garnish-

ment shall issue against the daily, weekly, or monthly

wages of any person residing in this State: Provided,

further, that the wages of a share cropper shall also be

exempt from garnishment until after final judgment

shall have been had against said share cropper: Provid-

ed, further, that nothing in this section shall be construed

as abridging the right of garnishment in attachment

before judgment is obtained.

STATEMENT OF THE CASE (RULE 231(e))

On the August 20, 1971, DI-CHEM, INC., filed a

complaint on an account against North Georgia

Finishing, Inc. Also, on August 20, 1971, immediately

after filing said suit, DI-CHEM, INC., filed with the

Clerk of the Superior Court of Whitfield County,

Georgia, an affidavit and bond for garnishment

pursuant to Georgia Code Title 46, Sections 101 and 102

against The First National Bank of Dalton, as

garnishee. The Clerk of the Whitfield Superior Court,

immediately issued and had served upon the garnishee

on August 20, 1971, the summons of garnishment. North

Georgia Finishing, Inc., was not served with a copy of

the process of garnishment and had no knowledge of

same prior to service of summons on the garnishee The

affidavit and bond for garnishment was executed by

an agent of the appellee pursuant to Georgia Code Title

46, Sections 101 and 102 on the basis of a suit pending

North Georgia Finishing, Inc., had on deposit in The

First National Bank of Dalton, at the time the summons

of garnishment was served, a certain sum of money

which constituted its payroll account. The effect of this

garnishment action was to freeze whatever funds North

Georgia Finishing, Inc. had on deposit in The First

National Bank of Dalton at that time. On 23 August,

1971, North Georgia Finishing, Inc. posted a

dissolutionment bond to create standing as required

by law and the garnishee was discharged by order of

the Superior Court of Whitfield County, Georgia. On

September 15, 1971, North Georgia Finishing, Inc., filed

with the Superior Court of Whitfield County a motion

to dismiss the garnishment action. A hearing was held

before the Whitfield County Superior Court on 29

November, 1971; and in an order of that Court dated

2 December, 1971, the motion to dismiss the writ of

garnishment was deried. The Superior Court issued

at a later date a supplemental record on appeal in which

it stated, The pleadings of record raised generally the

issue of constitutional due process, but did not

specifically raise the due process issue of notice and

hearing, however, during argument of counsel certain

cases were cited as autuority by counsel for both

parties and the Court’s attention was specifically

directed to the constitutional due process issue of notice

and prior hearing as the same pertain to the facts of the

instant case

This action was appealed to the Supreme Court

of Georgia which transferred the case to the Georgia

Court of Appeals without opinion. The Court of Appeals

of Georgia in a five to four decision ruled that the

proceedings below had not, under Georgia procedure,

raised the constitutional issue. However, a writ of

certiorari to the Court of Appeals to reveiw that Court’s

judgment was granted by the Supreme Court of Georgia.

In its opinion, the Supreme Court of Georgia discussed

the issue of whether the constitutional question had

been raised and ruled. This Court now has before it the

question of whether an attack on Code Annotated §

46-101 on the ground that it vioiates the due process

and equal protection clauses of the State and Federal

Constitutions is sufficiently raised by the pleadings and

argument of counsel before the trial court as to be

no / considered by this Court. Although the pleadings

generally raise the issue of due process and equal

protection, the argument of counsel before the trial court

that it was deprived of notice and hearing before its

property was taken was not raised in the pleadings.

No objection was made, however, on this ground and

the trial judge specifically stated that he overruled the

defendant's motion to dismiss the process of garnish-

ment on each and every ground therein. The Civil

Practice Act of 1966 (Ga. L. 1966, p 609, Code Ann.

§81A-108 (a) ) has eliminated issue pleadings and has

substituted notice pleadings. Reynolds v. Reynolds,

217 Ga. 234, 246 (3) (123 SE2d 115); Brown v. Herring,

225 Ga. 67 (3) (166 SE2d 89). Therefore, we find that

the attack on Code Ann. §46-101 and the argument

of counsel made without objection sufficiently presented

the constitutional question to the trial court. The trial

court specifically ruled on each and every ground thereof

and this Court can now consider its ruling.”’

ARGUMENT FOR THE ALLOWANCE OF WRIT—

RULE 231(h)

North Georgia Finishing, Inc. has been deprived of

the use, benefit, and possession of funds in its bank

account by State action in the garnishment of its account

without prior notice or prior hearing.

The Supreme Court of the State of Georgia has

determined that Georgia Code Title 46 Section

101 is not violative of the Fourteenth Amendment to the

United States Constitution. This determination is not

in accord with the holdings of the United States Supreme

Court in Snidach v. Family Finance Corp., 395 U.S 337,

89 S.Ct. 1820 (1969), and Fuentes v. Shevin, 92 S. Ct.

1983 (1972). The Supreme Court of Georgia in making

such a determination has decided a federal question of

substance not heretofore ruled upon directly by the United

States Supreme Court but which opinion is in conflict

with related decisions of the United States Supreme

Court.

January 4, 1974

Mrs. Joline B. Williams, Clerk

The Supreme Court of Georgia

Judicial Building

Capitol Square South

Atlanta, Georgia 30303

ORDER OF RECORD AND

NOTICE OF CERTIORARI

RE: North Georgia Finishing, Inc., Appellant

V. Di-Chem, Inc., Appellee; First National

Bank of Dalton, Garnishee

Supreme Court of Georgia Case No. 28217

Dear Mrs. Williams:

Confirming our earlier conversations, please take

this as notice of appeal to the United States Supreme

Court, Washington, D. C., by North Georgia Finishing,

Inc., from the order of the Georgia Supreme Court in the

Court’s decision of October 25, 1973, denying Appellant's

Motion for Rehearing in Case No. 28217, as above, this

appeal to be by certiorari under Rule 23 and others.

Pursuant to Rule 12 of the Supreme Court Rules,

Title 28, United States Code §2071, et. seq., you are here-

by respectfully requested to certify the entire record in

this case and to provide for its transmission to the

Supreme Court of the United States, Washington, D.C.

This appeal by certiorari is taken persuant to United

States Code Title 28, Section 1257. Appellant North

Georgia Finishing contends that Georgia Code Title

46, Section 101, insofar as it provides for the taking of

10

property without prior notice and hearing through process

of garnishment where suit shall be pending but before

judgment, is unconstitutional as being repugnant to

the due process and equal protection clauses of the

Fourteenth Amendment to the United States Con-

stitution.

Please prepare the aforesaid transcript of the record

for transmission to the United States Supreme Court, and

incsude the entire record.

Thank you.

Respectfully,

MITCHELL, MITCHELL,

COPPEDGE & BOYETT

/s/ Warren N. Coppedge, Jr.

Warren N. Coppedge, Jr.

Nathaniel Hansford

WNCjr/NH:kj

cc: H. E. Kinney, Esq.

ce: Carlton McCamy, Esq.

— —

= —

11

PROOF OF SERVICE

GEORGIA, WHITFIELD COUNTY.

I, WARREN N. COPPEDGE, JR., Attorney for

Appellant, North Georgia Finishing, in Case No. 28,217

in the Supreme Court of the State of Georgia, against

Di-Chem, Inc., appellee, and First National Bank of

Dalton, garnishee, do hereby swear that on this the 4th

day of January, 1974, I served a copy of the foregoing

Notice of Appeal by Cert».rari to the Supreme Court of

the United States on Di-Chem, Inc., Appellee, and First

National Bank of Dalton, garnishee, by mailing a copy

of the foregoing notice and request for the record to their

counsel of record, H. E. Kinney, Esq., Pittman, Kinney,

Kemp, Pickell & Avrett of Dalton, Georgia, and Carlton

McCamy, Esq., McCamy, Minor, Phillips & Tuggle of

Dalton, Georgia.

s, Warren N. Coppedge, Jr.

WARREN N. COPPEDGE, JR.

APPELLANT'S ATTORNEY

Sworn to and subscribed before me,

this the 4th day of January, 1974:

/s/ Kaye C. Jordan

NOTARY PUBLIC, GA. STATE AT LARGE

12

APPENDIX A

CLERK’S OFFICE, SUPREME COURT OF GEORGIA

Atlanta, October 25, 1973

Dear Sir:

The motion for a rehearing was denied today: Case

No. 28217, North Georgia Finishing, Inc. v. Di-Chem,

Inc., et al.

Yours very truly,

Mrs. Joline B. Williams, Clerk

i3

APPENDIX B

SUPREME COURT OF GEORGIA

28217. NORTH GEORGIA FINISHING, INC. v.

DI-CHEM, INC. et al.

Undercofler, Justice. Di-Chem, Inc., filed a complaint on

an account against North Georgia Finishing, Inc.

Immediately after filing said suit, Di-Chem, Inc., filed

an affidavit and bond for garnishment against the First

National Bank of Dalton, as garnishee.

North Georgia Finishing, Inc., filed a motion to dismiss

the writ of garnishment on the ground that Code Ann.

$ 46-101 providing for garnishment in this state is

unconstitutional because it violates the due process

and equal protection clauses of the State and Federal

Constitutions. After hearing argument on this issue,

the trial court overruled the motion and signed a

certificate for immediate review. The appeal is from

this judgment. Held:

1. The defendant moved to dismiss the garnishment on

the ground that it was issued under the authority of

Georgia Code Annotated § 46-101" and that it

violated his rights of due process and equal protection

guaranteed by the Constitutions of Georgia and the

United States. The trial court certified: The Court,

at said hearing, considered the pleadings of record in

said case and entertained argument of counsel. The

pleadings of record raised generally the issue of

constitutional due process, but did not specifically

raise the due process issues of notice and hearing,

however, during argument of counsel certain cases

were cited as authority by counsel for both parties and

the court’s attention was specifically directed to the

14

constitutional due process issues of notice and prior

hearing as the same pertain to the facts of the instant

case. Counsel for the plaintiff made no objection

concerning the issues of hearing and notice as the same

were raised in the argument of the defendant. After

hearing argument of counsel, the court entered an

order overruling the defendant’s motion to dismiss

the process of garnishment on each and every ground

therein and certified the question for immediate

review.

This court now has before it the question of whether an

attack on Code Ann. § 46-101 on the ground that it

violates the due process and equal protection clauses

of the State and Federal Constitutions is sufficiently

raised by the pleadings and argument of counsel before

the trial court as to be now considered by this court.

Although the pleadings generally raise the issue of

due process and equal protection, the argument of

counsel before the trial court that it was deprived of

notice and hearing before its property was taken was

not raised in the pleadings. No objection was made,

however, on this ground and the trial judge specifically

stated that he overruled the defendant's motion to

dismiss the process of garnishment on each and every

ground therein.

The Civil Practice Act of 1966 (Ga. L. 1966, p. 609; Code

Ann. § 81A-108 (a)) has eliminated issue pleadings

and has substituted notice pleadings. Reynolds v.

Reynolds, 217 Ga. 234, 246 (123 SE2d 115); Bourn v.

Herring, 225 Ga. 67 (3) (166 SE2d 89). Therefore, we

find that the attack on Code Ann. § 46-101 and the

argument of counsel made without objection suffi-

ciently presented the constitutional question to the

trial court. The trial court specifically ruled on each

15

and every ground thereof and this court can now

consider its ruling.

Code Ann. § 46-101 provides: In cases where suit

shall be pending, or where judgment shall have been

obtained, the plaintiff shall be entitled to the process

of garnishment under the following regulations:

Provided, however, no garnishment shall issue against

the daily, weekly or monthly wages of any person

residing in this State until after final judgment shall

have been had against said defendant. . .". Code Ann.

§ 46-102 requires the complainant, his agent, or

attorney at law to make affidavit before some officer

authorized to issue an attachment, or the clerk of any

court of record in which said garnishment is being

filed or in which the main cause is filed, stating the

amount claimed to be due in such action, or on such

judgment, and that he has reason to apprehend the

loss of the same or some part thereof unless process

of garnishment shall issue and shall give bond, with

good security, in a sum at least equal to double the

amount sworn to be due, payable to the defendant in

the suit or judgment, as the case may be, conditioned

to pay said defendant all costs and damages that he

may sustain in consequence of suing out said garnish-

ment, in the event that the complainant shall fail to

recover in the suit, or it shall appear that the amount

sworn to be due on such judgment was not due; or

that the property or money sought to be garnished

wae nut subject to process of garnishment. Code Ann.

§ 46-105 provides for the summons of garnishment

directed to the garnishee, the service, bond and sub-

sequent procesdings. Ga. L. 1962, pp. 717, 718; 1964,

pp. 220, 221.

After garnishment has been issued, the defendant may

16

dissolve the garnishment by filing a bond. Code

§ 46-401.

The appellant contends that the Georgia garnishment

statute is unconstitutional because it does not provide

the debtor with notice and an opportunity to be heard

before his property is taken. It argues that Sniadach

v. Family Finance Corp., 395 U.S. 337 (89 SC 1820,

23 LE2d 349) requires such a holding.

In Sniadach the Supreme Court of the United States

(p. 340) held: “A procedural rule that may satisfy

due process for attachments in general, see McKay

v. McInnes, 279 U. S. 820 [49 SC 344, 73 LE 975],

does not necessarily satisfy procedural due process

in every case. The fact that a procedure would pass

muster under a feudal regime does not mean it gives

necessary protection to all property in its modern

forms. We deal here with wages—a_ specialized

type of property presenting distinct problems in our

economic system. We turn then to the nature of

that property and problems of procedural due

process. (Emphasis supplied.)

“McKay was but a one sentence per curiam upon

affirming the judgment of the Supreme Court of

Maine, viz., McInnes v. McKay, 127 Me. 110 (141

A 699) (1928). The Maine court’s opinion was a

positive rejection f the view that attachment (which

as the opinion indicates, could be equated with

garnishment) constitutes an unconstitutional de-

privation of property without due process of law.

The Maine court recognized the obviously drastic

character of attachment in the manner in which it

interferes with the incidents of ownership prior to

any judgment on the plaintiff's claim having been

17

made, but held that the deprivation of that

‘property’ was not ‘the deprivation of property’

contemplated by the Constitution. And if it be, it

is not deprivation without ‘due process of law’ for

it is a part of a process, which during its proceed-

ing gives notice and opportunity for hearing and

judgment. 141 A. at 702. American Olean Tile

Co. v. Zimmerman, 317 FSupp. 150, 151 (USDC

Hawaii 1970).

In Georgia the writ of garnishment is ancillary to the

main action pending between the plaintiff and the

defendant. Dent v. Dent, 118 Ga. 853 (1) (45 SE

680). “The plaintiff shall not have judgment

against the garnishee until he shall have obtained

judgment against the defendant. Code § 46-405.

“The effect of the writ of garnishment is, therefore,

to impound any asset or property of defendant

which is found in the hands of the garnishee pend-

ing the resolution of the merits of the garnisher’s

claim. The writ itself constitutes, at most, a lis

pendens notice that a right to perfect a lien on the

garnisheed property exists, but such perfection must

await judicial action.” Kuffel v. United States, 103

Ariz. 321, 325 (441 Pad 771).

It follows that the Sniadach decision would indicate

that the Supreme Court did nothing more than

carve out an exception for wage earners from what

the court deemed to be otherwise lawful prejudgment

ceizures, i. e., that garnishment of wages was a

limited exception to the general rule of legality of

garnishment statutes.

Blocker v. Blackburn, 228 Ga. 285 (185 SE2d 56)

which held that Georgia’s distress warrant proceed-

18

ings were unconstitutional and Hall v. Stone, 229

Ga. 96 (189 SE2d 403) which held that Georgia's

bail trover statute was unconstitutional are not

controlling here. In those cases, the property was

seized without any notice to the owner.

This court is not alone in limiting the reach of the

Sniadach decision to wages. See Roofing Wholesale

Co. v. Palmer, 108 Ariz. 508 (502 P2d 1327);

American Olean Tile Co v. Zimmerman, 317 FSupp.

150, supra; Black Watch Farms v. Dick, 323 FSupp.

100 (USDC Conn. 1971).

Other courts have come to an opposite rule. See

Larson v. Fetherston, 44 Wis. 2d 712 (172 NW2d

20); Jones Press v. Motor Travel Services, 286

Minn. 205 (176 NW2d 87); Randone v. Appellate

Dept. of Superior Court, 5 Cal. 3d 536 (488 P2d 13,

96 Cal. Reptr. 709).

Judgment affirmed. All the Justices concur, except

Mobley, C. J., Grice, P. J., and Nichols, J., who

concur specially because of the ruling in Division 1.

ARGUED SEPTEMBER 11, 1973 — DeciIDED OCTOBER 4,

1973 — REHEARING DENIED OCTOBER 25, 1973.

Garnishment; constitutional question. Whitfield Supe-

rior Court. Before Judge Vining.

Mitchell, Mitchell, Cop dge & Boyett, Samuel J.

Brantley, for appellant.

H. E. Kinney, for appellees.

Grice, Presiding Justice, concurring specially. I am

__. =

19

in full accord with everything stated in the opinion

except Division 1, as to making a constitutional attack.

While the law of the case has been established as to

the sufficiency of the attacks made here by virtue of

North Ga. Finishing v. Di-Chem, 230 Ga. 623 (198 SE2d

284), I desire to take this opportunity to express some

views that I have on the subject.

Requirements for attacking the constitutionality of

a statute have been in force for many years in this

state. The following statement of them should suffice.

“In order to raise a question as to the constitu-

tionality of a ‘law’. at least three things must always

be shown: (1) the statute or part of a statute which

the party would challenge must be stated, or pointed

out with fair precision; (2) the provision of the

Constitution which it is claimed has been violated

must also be clearly designated; and (3) it must be

shown wherein the statute violates such constitutional

provision. [Cits.] Stegall v. Southwest Ga. Housing

Authority, 197 Ga. 571, 582 (30 SE2d 196).

and specific contention or question is presented for

determination. [Cits.].” Abel v. State, 190 Ga. 651,

654 (10 SE2d 198). |

10

Accordingly, on many occasions this court has

refused to consider attacks which do not measure up

to these requirements.

As I view this record, the motion to dismiss the

garnishment fails to set forth or point out with fair

precision the statute which is challenged.

This court has consistently held that mere desig-

nation of “Georgia Code Annotated,” or the like, with-

out reference to the statute itself, is not sufficient.

There has been no legislative enactment officially

adopting such code as law. Therefore it does not have

the legal effect of a statute.

In Bowen v. State, 215 Ga. 471 (111 SE2d 44) it

was sought to attack the constitutionality of sub-

paragraph (a) of Code (Ann.) § 68-1626. However

this court held as follows: The attempt thus to attack

the constitutionality of subparagraph (a) of Code

(Ann.) § 68-1626 is futile, since there is no such

paragraph and section in the official Code of 1933.

Such subparagraph and such section have never

become law in consequence of any necessary and

required adopting or enacting legislative action. Hence,

any decision rendered by this court at this time

respecting the validity or the invalidity of subpara-

graph (a) of Code (Ann.) § 68-1626 would in no way

affect the act from which these provisions were taken

and placed in an unofficial annotated Code, which a

publishing company in the City of Atlanta compiled

21

In Widemon v. Burson, 224 Ga. 665 (164 SE2d 128),

each enumeration of error complained of failing to declare

a section of the Annotated Code unconstitutional. This

court held that “Any ruling upon the constitutionality

of a section of the Annotated Code, which has never been

adopted by the General Assembly, an essential necessary

for it to become law, would in no wise affect the Act of

the General Assembly from which the section of the

In Turk v. State Hwy. Dept., 226 Ga. 245, 246 (174

SE2d 791), the attack was made upon section 36-1307

Ga. Code Ann. This court held that this designation

was not sufficient.

See also, Morgan v. Todd, 214 Ga. 497, 499 (106 SE2d

37); Holmes v. State, 224 Ga. 553, 558 (163 SE2d 803);

Cox v. Burson, 226 Ga. 13 (2) (172 SE2d 406).

These unreversed unanimous decisions of this court

are binding precedents which should have been adhered

to in the disposition of this matter.

This court has spoken many times on the effect of

unanimous unreversed decisions. In Crown Laundry

v. Burch, 205 Ga. 211, 212 (53 SE2d 116), referring to

three such decisions, Mr. Justice Candler speaking on

behalf of the full-court declared: Those cases are un-

questionably authority for the ruling complained of; and

the three cases from this court are all full-bench decisions

which have not been overruled or materially modified,

and since they are not in conflict with any of our older

decisions, they are binding upon us and must be followed.

There is no request to review and overrule those decisions

in the manner prescribed by law (Code, § 6-1611), and

so long as they are permitted to stand they have the force

22

and effect of a statute and are controlling on the question

there decided. (Emphasis supplied.) See also Hagan

v. Asa G. Candler, Inc., 189 Ga. 250, 258 (5 SE2d 739,

126 ALR 108).

Reference to Georgia Code Annotated” has been for

mere convenience and aid in locating the law of this state

and when it has been accompanied by citation to the

statute enacted by the General Assembly there has been

no problem. But here no such accompanying reference is

made. The citation is only “Georgia Code Annotated

§ 46-101.“ With due regard for the high quality of the

codal publication involved here, we must conclude that

reference to it alone does not constitute a legal citation.

We cannot take judicial notice of it.

These requirements for attacking a statute were not

done away with by the Civil Practice Act (Ga. L. 1966,

p. 609 as amended; Code Ann. § 81A-101 et seq.) or the

Appellate Practice Act (Ga. L. 1965, p. 18, as amended;

Code Ann. § 6-701 et seq.)

Rather, without exception, they have been reaffirmed

in many cases of this court decided after the passage of

these Acts, as is shown in the cases cited hereinbefore.

Significantly, in none of such cases are those Acts ever

mentioned.

There is no language in the Civil Practice Act which

gives any support to the contention that it abrogated the

requirements for challenging the constitutionality of a

statute. None is forthcoming from Section 1 of that Act

(Ga. L. 1966, pp. 609, 610; Code Ann. § 81A-101) to the

effect that it governs procedure in all courts of record in

all civil suits, with a noted exception, or from the provision

which recites that the Act shall be construed to secure

23

the just, speedy and inexpensive determination of every

action. I approve of these objectives but the Act does

not change the law involved here.

Furthermore, the concept of notice pleading derived

from Section 8 of the Civil Practice Act and exemplified

by such cases as Bourn v. Herring, 225 Ga. 67 (3) (166

SE2d 89) and Harper v. DeFreitas, 117 Ga. App. 236,

238 (160 SE2d 260) is not applicable here. This is

because a motion is not a pleading within the purview

of the Civil Practice Act.

In this regard, Section 7 of that Act (Ga. L. 1966, pp.

609, 618; 1967, pp. 226, 230; Code Ann. § 81A-107) makes

a clear distinction.

Subsection (a) of that section is headed Pleadings,

and enumerates specifically what pleadings are allowed,

making no reference whatever to motions.

On the other hand, subsection (b) is headed Motions

and other papers, and in material part provides as

follows: (1) An application to the court for an order

shall be made by motion which . shall state with

particularity the grounds therefor . . . (2) The rules

applicable to captions, signing, and ail other matters of

form of pleadings apply to all motions and other papers

provided for by this Title: (Emphasis supplied.)

This last provision, as to matters of form, obviously

does not relate to the content of the attacks made upon

the constitutionality of a statute, as called for by the

requirements set forth previously in this opinion.

It is significant that Section 7 (b) (1) requires that the

grounds of motions be stated with particularity. Here

24

the motion to dismiss the garnishment did not do so.

Thus, as I apprise the situation, nothing in the Civil

Practice Act abrogates the aforementioned requirements

for attacking the validity of a statute.

Likewise, there is no provision in the Appellate Practice

Act. (Ga. L. 1965, p. 18; Code Ann. § 6-701 et seq.) which

does so. Section 23 (Ga. L. 1965, pp. 18, 40; Code Ann.

§ 6-905), which declares in substance that the Act is

intended to provide a new appellate procedure, and

should be liberally construed to bring about a decision on

the merits to avoid dismissal of appeals except as

specifically referred to therein, has my full support.

However, it has nothing to do with the requirements

of making a proper attack upon the constitutionality

of a statute.

As I view it, there is no merit in the contention that

the plaintiff's failure to object in the trial court to the

content of the defendant’s grounds for dismissal of the

garnishment proceeding and the argument on certain

cases resulted in a waiver of its right to challenge now the

rules for attacking the validity of the garnishment statute.

As stressed in this concurring opinion these are well

established requirements for making such attacks. The

burden is upon the party making the attacks to do so

properly. It was not carried here.

I am authorized to state that Chief Justice Mobley and

Justice Nichols join me in this special concurrence.

25

APPENDIX C

COURT OF APPEALS

of the State of Georgia

Atlanta, July 9, 1973

The Honorable Court of Appeals met pursuant to

adjournment. The following order was passed:

NORTH GEORGIA FINISHING, INC. v.

DI-CHEM, INC. et al.

In accordance with the mandate of the Supreme

Court, this case is transferred to the Supreme Court. See

North Georgia Finishing Company, Inc. v. Di-Chem,

Inc. et al, No. 27697, decided May 24, 1973.

COURT OF APPEALS OF THE STATE OF GEORGIA

Clerk's Office, Atlanta July 9, 1973

I certify that the above is a true extract from the

minutes of the Court of Appeals of Georgia.

Witness my signature and the seal of said court hereto

affixed the day and year last above written.

Clerk.

26

APPENDIX D

SUPREME COURT OF GEORGIA

27697. NORTH GEORGIA FINISHING, INC. v.

DI-CHEM, INC.

PER CURIAM. This case comes here by grant of a writ of

certiorari to the Court of Appeals to review that

court’s judgment. 127 Ga. App. 593 (194 SE2d 508).

The original appeal was to this court, and this court

erroneously transferred the case to the Court of

Appeals. .

We now conclude that a constitutional issue was

sufficiently raised, that the judgment of the Court of

Appeals was erroneous, and that judgment must be

reversed.

Upon remand to the Court of Appeals, direction is given

that the case be retransferred to this court for

re-docketing here, so that the constitutional issues

raised may be argued and decided on the merits.

Judgment reversed with direction. All the Justices

concur except, Mobley, C. J., Grice, P. J., and Nichols

J., who dissent from the judgment of reversal.

ARGUED MARCH 12, 1973 — DPCIDED May 24, 1973.

Certiorari to the Court of Appeals of Georgia — 127

Ga. App. 593 (194 SE2d 508).

Mitchell, Mitchell, Coppedge & Boyett, Warren N.

Coppedge, Jr., for appellant.

McCamy, Minor, Phillips & Tuggle, Pittman, Kinney,

Kemp, Pickell & Avrett, for appellees.

27

APPENDIX E

App.) SEPTEMBER TERM, 1972. 593

47070. NORTH GEORGIA FINISHING, INC. v.

DI-CHEM, INC. et al.

PANNELL, Judge, Di-Chem, Inc., brought an action

against North Georgia Finishing, Inc., seeking a

judgment in the amount of $51,279.17, and upon

affidavit of plaintiff that said action was pending and

that it had reason to apprehend the loss of said sum,

or some part thereof, unless process of garnishment

issues, summons of garnishment issued and was

served upon the bank in which defendant had its

bank account. Three days later defendant gave bond

to dissolve the garnishment, and subsequently made

a motion to dismiss the garnishment, the only grounds

of which, argued on this appeal, read as follows:

1. Said garnishment was issued under the authority

of Georgia Code Annotated § 46-101, a code section

which has been expressly held unconstitutional as

violative of due process. 2. Said procedure is uncon-

stitutional in that it is violative of the defendant's

due process and equal protection rights guaranteed

him by the Constitution of the United States and the

Constitution of the State of Georgia. The motion

was overruled, with proper certificate for review and

an appeal was entered in this court. Contained in the

record is the following certificate of the trial judge:

“The court, at said hearing, considered the pleadings

of record in said case and entertained argument of

counsel. The pleadings of record raised generally the

issue of constitutional due process, but did not

specifically raise the due process issues of notice and

hearing; however, during argument of counsel certain

cases were cited as authority by counsel for both

28

parties and the court’s attention was specifically

directed to the constitutional due process issues of

notice and prior hearing as the same pertain to the

facts of the instant case. Among the cases cited were:

(a) Sniadach v. Family Finance Corporation of Bay

View, 395 U. S. 337 (1969); (b) Reeves v. Motor

Contract Company, 324 FSupp. 1011 (1971); and

(c) American Olean Tile Company v. Ralph E. Zim-

merman, Jr., 317 FSupp. 150 (1970). Counsel for the

plaintiff-appellee made no objection concerning the

issues of hearing and notice as same are raised in the

above mentioned cases on the grounds that said issues

had not been raised by the defendant-appellant’s

motion to dismiss. After hearing argument of counsel,

the court entered an order overruling the defendant-

appellant’s motion to dismiss the process of garnish-

ment on each and every ground therein and within

ten days thereafter the court certified the questions

for appeal. Held:

The record on appeal is insufficient to identify the statute

attacked as unconstitutional. The statute is identified

only as a Section of Ga. Code Annotated, published by

the Harrison Company. This is not sufficient. Morgan

v. Todd, 214 Ga. 497, 499 (106 SE2d 37); Bowen v.

State, 215 Ga. 471, 472 (111 SE2d 44); Holmes v. State,

224 Ga. 553, 557 (163 SE2d 803); Widemon v. Burson,

224 Ga. 665 (164 SE2d 128); Turk v. State Highway

Dept., 226 Ga. 245, 246 (174 SE2d 791). Nor does the

record on appeal sufficiently identify the particular

paragraph, section or article of the Federal or State

Constitution of which the statute or procedure is

claimed to be violative. Webb v. Echols, 211 Ga. 724

(88 SE2d 625); Lanier v. Suttles, 212 Ga. 154 (91

SE2d 21); Pate v. Brock, 212 Ga. 812 (96 SE2d 253);

Prince v. Thompson, 215 Ga. 860, 861 (113 SE2d 772);

— — A SE ae -

29

Ledford v. J. M. Muse Corp., 224 Ga. 617 (163 SE2d

815); Herring v. R. L. Mathis Certified Dairy Co.,

225 Ga. 653 (171 SE2d 124). See also Walker v. Hail,

226 Ga. 68, 69 (172 SE2d 411); Tant v. State, 226 Ga.

761 (177 SE2d 484); Stroud v. Stroud, 226 Ga. 769

(177 SE2d 574) and Taylor v. Moultrie Tobacco Sales

Board, 227 Ga. 384, 385 (180 SE2d 737). We are bound

by these decisions of the Supreme Court and only the

Supreme Court can change these rulings. Further, the

dissenting opinion is based upon alleged changes in the

rules here applied made by the Civil Practice Act and

the Appellate Practice Act. A goodly portion of the

Supreme Court’s decisions above cited were decided

since passage of those Acts. We find nothing in the

Civil Practice Act which changes the rules which we

have set forth. This opinion, as such, does not deal

with any “archaic form of pleading,” but deals with the

fact that the record, consisting partly of pleadings and

partly of a motion, fails to disclose a proper constitu-

tional attack upon aay statute or that the trial judge

passed upon any such constitutional attack if made.

The dissent relies on the application of rules applicable to

“notice pleadings and seeks to apply this to a motion

to dismiss which is not a pleading. Motions are required

to state with particularity the grounds therefor. . . .’’

Section 7 (b) (1) of the Civil Practice Act (Code Ann.

§ 81A-107 (b) (1)). Paragraph (2) of this Section pro-

vides that rules applicable to captions, signing, and

other matters of form of pleadings apply to all motions.

This does not do away with the requirement stated in

paragraph (1) as to particularity. Bigelow v. RKO

Radio Pictures, 16 FRD 15, 17 (20 FR Serv. 13, 15).

In that case it was said “Is the motion a pleading?

The explicit language of Rule 7 (a) with reference to

pleadings, and of Rule 7 (b) with reference to motions,

30

must cause this question to be answered in the nega-

tive. A motion is not a pleading. Moore’s Federal

Practice, Vol. 1, p. 1511 (2d Ed.). See also Johnson &

Gould v. Joseph Schlitz Brewing Co., D. C. Tenn.,

28 FSupp. 650. In United States v. 64.88 Acres of

Land, 25 FRD 88, 90 (3 FR Serv. 2d 7(b).2), it was said:

“On the subject of the requirements of Rule 7(b), in

the Eastern District, an experienced trial judge in

United States v. Krasnov, D. C., 143 FSupp. 184, 196

said ‘I do not consider this rule to establish a mere tech-

nical requirement but rather hold it to be real and sub-

stantial.’ In this connection it is interesting to note that

Judge Igoe of Illinois in Bigelow v. RKO Radio

Pictures, D. C., 16 FRE 15, in examining Rule 7 (a)

which refers to pleadings and Rule 7 (b) which refers

to motions, concludes that a motion is not a pleading.

On this general proposition Barron & Holtzoff, Vol.

1, p. 405, in referring to the requirement of particularity

says that the ‘requirements are mandatory; com-

pliance is essential to orderly procedure:

Even should we assume that under a motion to dismiss

for failure to state a claim (although there is no such

motion here) constitutional questions could be raised

by oral argument (see Waters v. State, 226 Ga. 278

(174 SE2d 420)) the record on appeal must show that

such question was properly raised (as required by the

cases cited) and also that such question was ruled upon

by the trial judge. Neither appears here. Neither the

motion nor the certificate of the trial judge shows (1)

what statute was involved in the alleged constitutional

attack or (2) what specific constitutional provisions,

either Federal or State, were involved, nor did it show

(3) that the trial judge ruled the alleged statute was or

was not constitutional.

31

It might also he well to note that this case was trans-

ferred to this court by the Supreme Court, without

opinion.

Accordingly, we must affirm the trial judge in overruling

the motion to dismiss the garnishment.

Judgment affirmed. Eberhardt, P. J., Quillian, Evans

and Clark, JJ., concur. Bell, C. J., Hall, P. J., Deen

and Stolz, JJ., dissent.

SUBMITTED APRIL 7, 1972— DECIDED OCTOBER 26, 1972—

REHEARING DENIED NOVEMBER 21, 1972—CERT. APPLIED

FOR.

Garnishment. Whitfield Superior Court. Before Judge

Vining.

Mitchell, Mitchell, Coppedge & Boyett, Samuel J.

Brantley, for appellant.

Pittman, Kinney, Kemp, Pickell & Avrett, H. E.

Kinney, for appellees.

HALL, Presiding Judge, dissenting. The majority

opinion does not reach the merits of the appeal. It affirms

the judgment upon the ratio decidendi of Supreme

Court opinions that predate the CPA. It also cites

Supreme Court decisions that postdate the CPA, but these

are either memorandum decisions or summary opin-

ions on the point which merely cite pre-CPA decisions

for their authority. It appears that neither appellate

court has ever squarely considered the question of the

effect of the CPA on pleading a constitutional question.

“The doctrine of stare decisis cannot be invoked to sus-

tain, as authority, a decision which is in conflict . . with

32

a previous statutory enactment to which the decision

makes no reference, and which is made without reviewing

or construing the statute, and in such a case the statute

should be followed rather than the decision. 21 CJS

325-326, Courts, § 193. Where previous decisions of this

court are in conflict with a previous statutory enact-

ment, to which no reference is made, such decisions will

be rejected as authority, without the formality of review-

ing and overruling them. ‘It being a choice between the

Act of the legislature and a subsequently conflicting

decision of the court, the Act of the legislature speaks

with imperative and controlling authority and must be

followed in preference to the judicial utterance in con-

flict therewith.’ Central of Ga. R. Co. v. Jones, 28 Ga.

App. 258, 261 (110 SE 914). Murphy v. Harding, 220

Ga. 634, 636 (140 SE2d 852). The Jones case by this court

involved a similar issue—a statute liberalizing the pro-

cedural requirements for an assignment of error.

Prior to the CPA it was said: Probably no phase of

pleading in Georgia is fraught with more technicalities

than with respect to raising constitutional issues.”

Georgia Procedure and Practice 38, § 2-23 (1957 Ed.).

The question here is whether this archaic form of pleading

is applicable under the CPA. In my opinion, it is not.

The Constitution of 1945 provides that The General

Assembly may provide for carrying cases or certain

classes of cases to the Supreme Court and the Court of

Appeals from the trial courts otherwise than by writ of

error, and may prescribe conditions as to the right of a

party litigant to have his case reviewed by the Supreme

Court or Court of Appeals. Code Ann. § 2-3704.

It is common knowledge that our appellate judges

differ in their view of the Appellate Practice Act of 1965

33

and the Civil Practice Act of 1966. These differences vary

in degree and are based upon honest convictions. It must

be acknowledged that these personal predilections have

influenced the positions taken by the judges in cases

before both appellate courts. Nevertheless, it should be

emphasized that the law on this question is not simply

what the judges of this court think the law should be, but

what the General Assembly has said it is. Horton v.

Brown, 117 Ga. App. 47, 49 (159 SE2d 489). I respect-

fully submit that the intent of the General Assembly,

as between deciding cases on the merits or avoiding the

question by technicalities, is clear. Analysis . shows

that there is no gap between what they wrote and what

in reason they must have meant. Woolford Realty Co. v.

Rose, 286 U. S. 319, 330 (52 SC 568, 76 LE 1128).

568, 76 LE 1128).

The Appellate Practice Act of 1965, as amended, pro-

vides: It is the intention of this law to provide a new

procedure for taking cases to the Supreme Court and

Court of Appeals, as authorized in the Constitution of

1945, Article VI, Section II, Paragraph IV (Georgia Code

Anno., Section 2-3704), and, to that end, this law shall

be liberally construed so as to bring about a decision

on the merits of every case appealed, and to avoid dis-

missal of any case or refusal to consider any points

raised therein, except as may be specifically referred to

herein. Code Ann. § 6-905.

The CPA provides: “This Title governs the procedure

in all courts of record of the State of Georgia in all suits of

a civil nature whether cognizable as cases at law or in

equity, with the exceptions stated in section 814-181.

The provisions of this Title shall be construed to secure

the just, speedy, and inexpensive determinatic™ of every

action. Code Ann. § 81A-101.

34

Since the enactment of the CPA, both this court and

the Supreme Court have held that we now operate under

“notice pleading and that “a petition should not be

dismissed for failure to state a claim unless it appears

beyond doubt that the plaintiff can prove no set of facts

in support of his claim which would entitle him to relief.

Byrd v. Ford Motor Co., 118 Ga. App. 333 (163 SE2d

327); Hunter v A- Bonding Service, 118 Ga. App.

498 (2) (164 SE2d 246); Harper v. DeFreitas, 117 Ga.

App. 236 (1) (160 SE2d 260); Bourn v. Herring, 225 Ga.

67 (3) (166 SE2d 89). All that a motion to dismiss must

formally state is that the petition “fails to state a

claim. The same principle was applied in Benefield

v. Malone, 110 Ga. App. 607 (139 SE2d 500) with respect

to a motion for summary judgment (overruling Suggs v.

Brotherhood of Locomotive Firemen &c,. 104 Ga. App.

219, 223 (121 SE2d 661)).

As stated above, the CPA governs all courts of record

and all suits of civil nature. It is therefore axiomatic

that it covers the manner of pleading this constitutional

issue.

The old rules of pleading used two technicalities to

avoid constitutional questions: a statute could not be

identified by citing a section of Ga. Code Annotated,

published by the Harrison Company; and the pleader had

to specifically identify the particular paragraph, section or

article of the Federal or State Constitution of which the

statute or procedure is claimed to be violative. These

technicalities are not only in direct conflict with the CPA

and the Appellate Practice Act but are also anomalous.

By what logic can an appellate court use the Ga. Code

Annotated for formal citation in its printed opinions

which are permanent, official State records and at the

same time deny its use to a party litigant in typewritten

35

papers under „ system of notice pleading. As for

identifying constitutional provisions, a similar strict and

word-perfect requirement was once necessary in objecting

to the charge of the court. However, in a recent case

interpreting the Appellate Practice Act, this court said

that “the statute does not demand a formalistic, tech-

nically perfect objection. The only requirement is that

the grounds of the objection be stated distinctly enough

for a ‘reasonable’ trial judge to understand its nature,

enabling him to rule intelligently on the specific point.

In other words, it is merely a rule of common sense.”

Horton v. Ammons, 125 Ga. App. 69, 72 (186 SE2d

469), affirmed Smith v. Ammons, 228 Ga. 855 (188

SE2d 866). The same reasoning applies to pleading

a constitutional issue. The question is whether the plead-

ings give fair notice to the opposite party and enable a

“reasonable” trial or appellate judge to understand the

issue presented? In my opinion, the appellant's motion to

dismiss meets this test. It points out that the cited Code

section (Code Ann. § 46-101) has been held unconstitu-

tional as violative of due process and that the procedure

used violates the due process and equal protection rights

guaranteed by the Constitution of the United States and

the Constitution of the State of Georgia. The trial judge

recited in his order that the argument before him was

specifically directed to the constitutional due process

issues of notice and prior hearing as they apply to the

facts in this case. He cited what he considered to be

the applicable precedents and ruled on the merits of the

case. An important constitutional issue is now before this

court. We do not have the right to avoid deciding it on

the merits by invoking a technical rule of pleading which

has been superseded.

I am authorized to state that Chief Judge Bell and

Judges Deen and Stolz concur in this dissent.

36

APPENDIX F

SUPREME COURT OF THE STATE OF GEORGIA

Clerk's Office, Atlanta

February 1, 1972

Number 6827

Dear Sir:

The record in the case of

North Georgia Finishing, Inc.

VS.

Di-Chem, Inc., et al

has this day been received and fiied in this office, and

transferred to the Court of Appeals.

Yours very truly,

Mrs. Joline B. Williams, Clerk

73-112

FEB 29 N.

MICHAEL RT DAK, on |

p E UN A Ate

PETITIONER’S SUPPLEMENTAL BRIEF

TO

PETITION FOR CERTIORARI

BY

NORTH GEORGIA FINISHING, INC., Petitioner

V.

DI-CHEM, INC., Appellee

THE FIRST NATIONAL BANK

OF DALTON, Garnishee

from

SUPREME COURT OF THE STATE OF GEORGIA

IN ITS CASE NO. 28,217

Warren N. Coppedge, Jr.

Nathaniel Hansford

MITCHELL, MITCHELL, COPPEDGE & BOYETT

101 NORTH THORNTON AVENUE

DALTON, GEORGIA 30720

ATTORNEYS FOR PETITIONER

TO THE SUPREME COURT OF THE UNITED

STATES, WASHINGTON, D. C.

PETITIONER’S SUPPLEMENTAL BRIEF

TO

PETITION FOR CERTIORARI

On the 17th day of January, 1974, North Georgia

Finishing, Inc. filed a writ of certiorari to the Supreme

Court of the United States to submit for review and

reversal the opinion and decision of the Supreme Court

of the State of Georgia entered October 25, 1973, in its

Case Number 28217, entitled North Georgia Finishing,

Inc., Appellant v. Di-Chem, Inc., Appellee; First

National Bank of Dalton, Garnishee.

In the interval between filing the above petition

and this date a decision of great import has been rendered

by a Three-Judge Court in the Northern District of

Georgia styled Morrow Electric Co., Inc. v. Harold R.

Cruse, et al, Civil Action 19008. The decision of that Court

was published on January 28, 1974 and is an intervening

matter not available at the time of the filing of the

petition for writ of certiorari. This Supplemental Brief is

submitted pursuant to Rule 24 (5). A certified copy of

Morrow Electric Co., Inc. v. Harold Cruse, et al, is at-

tached hereto as Appendix A.

SUPPLEMENTAL BRIEF

On January 28, 1974, a United States Three Judge

Court sitting in the Northern District of Georgia rendered

a decision as to the constitutionality of the Georgia stat-

utory garnishment scheme as set out at Georgia Code

Annotated § 46-101, 46-102, and 46-401. In that case,

Morrow Electric Co., Inc. v. Harold R. Cruse, et al, Civil

Action 19008 (N.D. Ga.), the Court specifically ruled that

the provision of the Georgia Code which permit pre-

judgment garnishment are unconstitutional in that they

violate the Fourteenth Amendment by depriving plaintiff

of property without due process of law. The Court relied

upon the decisions of the United States Supreme Court

in Sniadach v. Family Finance, 395 U. S. 337 (1969) and

Fuentes v. Shevin, 407 U. S. 67 (1972) in reaching its

conclusion.

In Morrow Electric Co., (supra) the Court had before

it the question of garnishment of a bank account under

the Georgia garnishment statutes. It determined that

since the ruling in Fuentes (supra) the type of property

seized is no longer relevant to a determination of whether

due process rights should obtain. Observing the simi-

larity between the case in which its decision was reached

and the petitioner’s case of North Georgia Finishing, Inc.,

v. Di-Chem, Inc., 231 Ga. 260, the Court stated that it

disagreed with the Supreme Court of Georgia’s decision in

North Georgia Finishing, Inc. (supra) and construed the

clear import of Fuentes (supra) to leave no other choice

but to reach such a conclusion. Moreover, it was specif-

ically noted that the Supreme Court of Georgia failed to

refer to the Fuentes (supra) case in its opinion in North

—— —— +

Georgia Finishing, Inc. (supra).

MITCHELL, MITCHELL, COPPEDGE & BOYETT

BY: /s/ Warren N. Coppedge, Jr.

Warren N. Coppedge, Jr.

Nathaniel Hansford

ATTORNEYS FOR PETITIONER

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

MORROW ELECTRIC CO., INC.

VS.

HAROLD R. CRUSE, ET AL.

CIVIL ACTION

NO. 19008

Before BELL, Circuit Judge, and EDENFIELD

and FREEMAN, District Judges

ORDER

FREEMAN, District Judge:

This is a civil rights action brought by a corporate

plaintiff under 42 U.S.C. §1983 and its jurisdictional

counterpart, 28 U.S.C. §1343 (3), to declare unconsti-

tutional and enjoin the enforcement of the Georgia

statutory garnishment scheme as set out at Ga. Code

Ann. §§46-101, 46-102, and 46-401. (See Appendix). Plain-

tiff contends that this scheme violates the Due Process

Clause of the Fourteenth Amendment because it has

effectively deprived plaintiff of the use of its property—

specifically, a bank account set aside for payment of

state and federal employee withholding taxes— without

prior notice or an opportunity for a prior hearing. Plain-

tiff has also requested actual and punitive damages

against all defendants. As the complaint seeks to enjoin

the defendant Joe B. Mundy, in his capacity as Clerk of

the State Court of Clayton County, Georgia, from en-

forcing these provisions, a three-judge court has been

convened in accordance with 28 U.S.C. §2281. A hearing

before this court on plaintiff's motion for a preliminary

and permanent injunction was held on November 26,

1973. That motion is presently before the court. After

today’s order, the only matter remaining for consideration

will be the issue of damages.

FACTUAL BACKGROUND

The basic facts in this action are not in dispute.

The defendant Harold R. Cruse, d/b/a Southwest Electric

Supply Co. (hereinafter ‘“‘Cruse’’) is in the business of sup-

plying contractors with various construction materials.

Plaintiff Morrow Electric Company, Inc. (hereinafter

Morrow') is a Georgia corporation in the electrical con-

tracting business. On July 30, 1973, the defendant Cruse

filed a civil action against Morrow in the State Court of

Clayton County, Georgia, to recover an alleged debt of

$12,755.17 for goods and services rendered. On August 2,

Cruse and the Insurance Company of North America (not

a party to this action) executed a Bond for Garnishment,

pursuant to Ga. Code Ann. §46-102. On August 8, defen-

dant G. Roger Land, Cruse’s attorney, executed an af-

fidavit before the Deputy Clerk, Superior Court of Fulton

County, which stated the amount of Morrow's alleged in-

debtedness to Cruse (including an amount for attorney

fees), and referred to the pendency of the action in the

State Court of Clayton County. Both the bond and af-

fidavit were prepared on a standard form provided by the

State Court of Clayton County.

On August 9, agents of the defendant Joe B. Mun-

dy, Clerk of the State Court of Clayton County, served

summons of garnishment upon the Bank of Forest Park,

1066 Main Street, Forest Park, Georgia, at which plaintiff

maintains an account. The bank in turn notified plaintiff

that its account had been garnished, and on September 11

paid $15,028.17 into the registry of the State Court of

Clayton County. This sum had been deposited by plaintiff

to pay, among other things, various federal and state em-

ployment taxes. Checks previously written on this fund

which had been sent to the appropriate revenue agencies

were consequently returned for insufficient funds. Plain-

tiff does not have additional funds with which to pay its

tax liabilities or to obtain the collateral required by Ga.

Code Ann. §46-401 to dissolve the garnishment. As a con-

sequence, its operating assets are subject to seizure by

the United States or the State of Georgia.

THE STATUTORY GARNISHMENT SCHEME

Subject to some qualification, the Georgia statutory

garnishment scheme under attack is summarized cs

follows. The process of garnishment is available as

remedy to a plaintiff in a pending civil action. Ga. Code

Ann. §46-101. In order to use this process, the plaintiff or

his attorney must make an affidavit before some officer

authorized to issue an attachment stating the amount

allegedly due and his belief that unless garnishment

issues, the sum will be lost. In addition, he must furnish a

secured bond payable to the defendant in the pending ac-

tion equal to double the amount of the claimed in-

debtedness. The purpose of the bond is to indemnify the

defendant for damages resulting from the garnishment if

plaintiff eventually loses the pending action or the money

was not subject to garnishment. Ga. Code Ann. §46-102.

The defendant may dissolve the garnishment by filing a

secured bond payable to the plaintiff and conditioned on

the payment of any judgment in plaintiff's favor. Ga.

Code Ann. §46-401.

THE CONSTITUTIONAL ISSUE

Plaintiff has based its case upon Sniadach v. Family

Finance Corp., 395 U.S. 337 (1969) and Fuentes v. Shevin,

407 U.S. 67 (1972). When read together, these two cases

set forth a constitutional requirement that if due process

standards are to be met, notice and hearing, aimed at

establishing the probable validity of the creditor's claim,

must be afforded the alleged debtor before he is deprived

of the use of his property. See, Mason v. Garris and Allen

v. Rosser, consolidated at 360 F. Supp. 420, 423 (N. D. Ga.

June 21, 1973) (three-judge court). The Sniadach and

Fuentes courts recognized that in certain ‘‘extraordinary

situations postponement of notice and an opportunity

for a hearing would be justified, but required that the

statute authorizing such summary seizure be ‘narrowly

drawn to meet those unusual circumstances. Sniadach v.

Family Finance Corp., supra, at 339; Fuentes v. Shevin,

supra, at 90-93.

In addition, Fuentes also partially answered the

question left open in Sniadach as to what types of proper-

ty were entitled to due process protection. Sniadach had

involved pre-judgment garnishment of wages, and there

was some doubt as to whether its holding was limited to

such specialized types of property as wages. The Fuentes

court refused to read Sniadach so narrowly, and con-

cluded:

No doubt, there may be many gradations in the im-

portance or necessity of various consumer goods.

Stoves could be compared to television sets, or beds

could be compared to tables. But if the root principle

of procedural due process is to be applied with ob-

jectivity, it cannot rest on such distinctions. The

Fourteenth Amendment speaks of property

generally.

407 U. S. at 89-90. Although Fuentes itself involved the

seizure of such items as a stove and a stereo, the thrust of

its reasoning does not stop at consumer goods and would

appear to extend to any property interest which cannot be

considered de minimus.

The present case involves the garnishment of a bank

account maintained by a corporate employer to pay the

state and federal withholding and F. I. C. A. taxes of its em-

ployees. The Georgia statutes which authorize gar-

nishment of bank accounts have previously come under

attack in this district. In Aaron v. Clark, 342 F. Supp. 898

(N.D. Ga., May 4, 1973), a three-judge court held un-

constitutional those provisions of Ga. Code Ann. §§46-101

and 46-102 which permitted pre-judgment garnishment of

funds set aside in a bank account for college tuition. The

court, citing Sniadach, was quite careful to limit its

holding to the type of funds deposited in the bank ac-

count that is, money for college tuition—because such

funds were a specialized type of property whose

— —

deprivation would impose a great hardship on the alleged

debtor. The court held the garnishment of such funds to

be unconstitutional because the statutes provided no op-

portunity for prior notice and hearing, and did not restrict

their summary seizure to extraordinary situations. In ad-

dition, the court concluded that the availability to the

debtor of a bond to dissolve the garnishment, pursuant to

Ga. Code Ann. §46-402, was not a substitute for prior

notice and an opportunity to be heard.

Aaron v. Clark was decided a month before Fuentes.

It is clear that the only factor that prevented the three-

judge court from declaring sections 46-101 and 46-102 to

be unconstitutional as they relate to all pre-judgment gar-

nishments was the type of property interest involved.

Since Fuentes, this type of analysis is unwarranted, be-

cause the type of property seized is no longer relevant to

a determination of whether due process rights should

obtain.

Defendants nevertheless argue that Fuentes should

not apply in a more commercial setting, where creditor and

debtor normally bargain from more equal positions, and

where there is a substantial risk that the corporate debtor

may be dissolved in an attempt to avoid payment of any

judgment rendered against it. Defendants contend that

plaintiff's inability to post a dissolution bond indicates

that it is on the verge of financial collapse and urge that

the facts of this case are sufficiently extraordinary as to

warrant an exception to the due process requirement of

The court feels that this argument is without merit

because, as noted above, both Sniadach and Fuentes

require that the statute authorizing summary seizure be

10

narrowly drawn to meet extraordinary situations, regard-

less of whether the facts of a particular case are ex-

traordinary. As noted by the court in Aaron v. Clark,

supra, sections 46-101 and 46-102 are not so narrowly

drawn. Furthermore, it is not clear that all the equities in

this case are on the side of the defendants. The economic

impact of even a temporary deprivation of the bank account

in question could be quite severe should it result in the

seizure of the plaintiff's operating assets. Moreover, it is

well-settled that corporations are “persons” within the

meaning of the Fourteenth Amendment and have stand-

ing to assert due process violations. See, Grosjean v.

American Press Co., 297 U.S. 233 (1936).

The final matter for consideration today is the con-

tention by the State of Georgia, set forth in an amicus

brief submitted to this court, that the present action is

barred by the anti-injunction statute, 28 U.S.C. §2283.

This argument was duly considered and rejected by this

court’s order of November 16, 1973, on the grounds that a

civil rights action under 42 U.S.C. §1983 was an exception

to the anti-injunction statute. In its November 16 order,

the court denied defendants’ motion to dismiss or stay in

deference to an authoritative state court interpretation of

the statutes in question. It now appears that such an

authoritative interpretation has been rendered in North

Georgia Finishing, Inc. v. Di-Chem, Inc., 231 Ga. 260 (Oc-

tober 4, 1973), thereby vitiating any argument urging ab-

stention in favor of the state courts.

In North Georgia Finishing, Inc. v. Di-Chem, Inc.,

supra, the Georgia Supreme Court interpreted the gar-

nishment statutes and upheld pre-judgment garnishment

as constitutional. Without referring to Fuentes, the Court

reasoned that Sniadach did nothing more than carve out

11

an exception for wage earners from what the court

deemed to be otherwise lawful prejudgment seizures, i. e.,

that garnishment of wages was a limited exception to the

general rule of legality of garnishment statutes. 231 Ga.

at 263-264. Although we are reluctant to disagree with our

brethren on the Supreme Court of Georgia, the clear im-

port of Fuentes leaves us with no other choice but to reach

a contrary conclusion.

Accordingly, we hereby DECLARE that those

provisions of Ga. Code Ann. §§46-101, 46-102, and 46-401

which permit pre-judgment garnishment are un-

constitutional in that they violate the Fourteenth Amend-

ment by depriving plaintiff of property without due

process of law. Defendants are therefore permanently EN-

JOINED from implementing or enforcing in any manner

those provisions of Ga. Code Ann. §§46-101, 46-102 and

46-401, which permit pre-judgment garnishment.

Should plaintiff desire to pursue further its prayer

for damages, it is directed to do so by filing with Judge

Freeman's court its Notice of Intention within fifteen (15)

days of this order.

IT IS SO ORDERED.

This, the 28 day of January, 1973.

s/Griffin B. Bell

GRIFFIN B. BELL

UNITED STATES CIRCUIT JUDGE

s/ Newell Edenfield

NEWELL EDENFIELD

UNITED STATES DISTRICT JUDGE

s/ Richard C. Freeman

RICHARD C. FREEMAN

UNITED STATES DISTRICT JUDGE

12

APPENDIX

46-101. Right to writ; wages exempt until after final

judgment.

In cases where suit shall be pending, or judgment shall

have been obtained, the plaintiff shall be entitled to the

process of garnishment under the following regulations:

Provided, however, no garnishment shall issue against the

daily, weekly or monthly wages of any person residing in

this State until after final judgment shall have been had

against said defendant: Provided, further, that the wages

of a share cropper shall also be exempt from garnishment

until after final judgment shall have been had against said

share cropper: Provided, further, that nothing in this sec-

tion shall be construed as abridging the right of gar-

nishment in attachment before judgment is obtained. ( Act

1882, Cobb, 77. Acts 1855-6, p. 36; 1933, p. 35; 1952, p.

153.)

46-102. Affidavit; necessity and contents. Bond.

The plaintiff, his agent, or attorney at law shall make af-

fidavit before some officer authorized to issue an at-

tachment, or the clerk of any court of record in which the

said garnishment is being filed or in which the main case

is filed, stating the amount claimed to be due in such ac-

tion, or on such judgment, and that he has reason to ap-

prehend the loss of the same or some part thereof unless

process of garnishment shall issue, and shall give bond,

with good security, in a sum at least equal to double the

amount sworn to be due, payable to the defendant in the

suit or judgment, as the case may be, conditioned to pay

seid defendant all costs and damages that he may sustain

in consequence of suing out said garnishment, in the

— ee

13

event that the plaintiff shall fail to recover in the suit, or

it shall appear that the amount sworn to be due on such

judgment was not due, or that the property or money

sought to be garnished was not subject to process of gar-

nishment. No person shall be taken as security on the

bond who is an attorney for the plaintiff or a nonresident

unless the nonresident is possessed of real estate in the

county where the garnishment issues of the value of the

amount of such bond. (Act 1822, Cobb, 77. Acts 1855-6, p.

36; 1873, p. 29; 1884-5, p. 54; 1964, p. 220.)

46-401. Dissolution of garnishments; bond; judgment on

bond.

When garnishment shall have been issued, the defendant

may dissolve such garnishment upon filing in the clerk’s

office of the court, or with the justice of the peace, where

suit is pending or judgment was obtained, a bond with

good security, payable to the plaintiff, conditioned for the

payment of any judgment that shall be rendered on said

garnishment. The plaintiff may enter up judgment upon

such bond against the principal and securities, as

judgment may be entered against securities upon appeal,

whenever said plaintiff shall obtain the judgment of the

court against the property or funds against which gar-

nishment shall have been issued. (Acts 1884-5, p. 96.)

14

UNITED STATES OF AMERICA

NORTHERN DISTRICT OF GEORGIA) ss:

ATLANTA DIVISION

I, BEN H. CARTER, Clerk of the United States

District Court for the NORTHERN District of GEORGIA,

do hereby certify that the annexed and foregoing is a true

and full copy of the original Three Judge Order filed on

January 28, 1974 in Civil Action No. 19008 (MORROW

ELECTRIC CO., INC. -vs- HAROLD R. CRUSE, et al).

now remaining among the records of the said Court in my

office.

IN TESTIMONY WHEREOF, I have hereunto sub-

scribed my name and affixed the seal of the aforesaid

Court at Atlanta, Georgia this 15th day of February, A.

D. 1974

BEN H. CARTER

Clerk.

By /s/ Lorraine Nalting

Deputy Clerk.

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