Petition — Tally v. Johnson

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1978

IN THE | MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM, 1977

No. 77-1242

PLEASANT RICHARD TALLY

(a/k/a DICK TALLY),

Petitioner,

versus

WILLIAM P. JOHNSON, et. al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Bushrod Corbin Washington, Jr.

2509 Popkins Lane

Alexandria, Virginia 22306

(7€*) 765-8616

Mewuber of the District of

Columbia Bar andthe Supreme Court

of the United States

Carole Suzzanne Holman Richard A. Straser

Bank of Vienna Building 1320 Ft. Myer Drive

374 Maple Avenue East Suite 812

Suite 302 Arlington, Virginia 22209

Vienna, Virginia 22180 (703) 525-3562

(703) 281-4321

Attorneys of Record

for Petitioner

SCOFIELOS’ QUALITY PRINTERS, P. O. BOX 63096, N. 0. LA 7015" 604/822-1611

TABLE OF CONTENTS

Page

bcc ce chncuseckensedenseveneent 2

ED a nba db dbs 6n64-004400000 cosctienees 2

QUESTIONS PRESENTED ............cceceseeeees 3

STATEMENT OF THE CASE ............cceeeeees 6

(A) THE PROCEEDINGS BELOV ............. 6

(B) THE FUNDAMENTAL CON-

STITUTIONAL RIGHT OF PLEA-

SANT RICHARD TALLY IN ISSUE ...... 12

THE FEDERAL STATUTE INVOLVED .......... 15

THE COMMON LAW DOCTRINE INVOLVED ... 26

WHY IT IS OF GREATER NATIONAL IM-

PORTANCE TO GRANT THE WRIT IN

THIS CASE THAN IN Stump v. Sparkman,

No. 76-1750, Petition for Writ of Certiorari

granted to the Seventh U. S. Circuit Court of

RE, GE Ge BEE nh cckcccenccccsesccdtece 27

REASONS FOR GRANTING THE WRIT ........ 29

EE kvocdiutuecncapauetusseeeveseness 55

APPENDIX A — Judgment of the U.S. Court

of Appeals for the Fifth Circuit, dated

a UE cb aesdu bv aecenkedsdadeckesscess la

APPENDIX B— Order Denying the Petition

for Rehearing and the Suggestion of

Rehearing En Banc, U.S. Court of Appeals

for the Fifth Circuit, dated January 6,1978 ..... 2a

APPENDIX C — Judgment and Opinion of the

U.S. District Court for the Northern District

of Georgia, dated June 3, 1977 ...............5.. 3a

TABLE OF CONTENTS (Continued)

Page

APPENDIX D — Order Denying Plaintiff's

Motion to Alter or Amend the Judgment of

the U.S. District Court, dated June 30,1977 ..... 7a

APPENDIX E — The Claim for Relief of Plea-

eamt Richard TOMY ..cccccccccccccccsccccscccecs 8a

APPENDIX F — The Motion to Dismiss by

Defendant Lamar H. Knight ...............445. 16a

APPENDIX G -- The Response to the Motion

to Dismiss of Defendant Knight by Plaintiff

Pleasant Richard Tally ..........ccceeeseeeeees 26a

TABLE OF AUTHORITIES

CASES CITED

Azar v. Conley, 456 F.2d 1382 (6th Cir. 1972) .... 6,52

Bradley v. Fisher, 80 U.S. 335, 20 L.Ed. 646

SD cs vsudbeesauedbeed yen suseeuenseseweiae passim

Bray v. Landergren, 161 Va. 669, 172 S.E. 252

SEE 6: n:e nko 00b 6186964560000 ene een eeedeeeneenes 36

Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2

As EP COUETD coccccececscceesecee 39,27,41,46,48

Cook & Nichol, Inc. v. Plimsoll Club, 451 F.2d

fs | PPP TTPerrererrrr rrr re 3,9,27,41,49

Coweta Bonding Company v. Carter, 230 Ga.

Pe, Se IE Pe COED oc cee cccncnccecsccsss 3,34

Creswill v. Knights of Pythias, 133 Ga. 837, 67

ie MPD SAS6 65K 65 6hbS sec cane chbectetoesss 31

Cross v. Byrum, 348 F.Supp. 196 (S.D. Florida

SE sib cine whens 55408605000 00048508 wesncusees 4,6,41,

iii

TABLE OF AUTHORITIES (Continued)

Page

Daniel v. Jones, 146 Ga. 583,91S.E.665(1971) ..... 31

DeBerry v. City of La Grange, 62 Ga. App. 74,8

SE OED 6.40.6 00000e0esdnbeeeesessesesdac 15

Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) . .. 3,5,29,

47,58

Free Gift Society No. 25 v. Edwards, 163 Ga.

Se Se Gs SEED ce vcccvccdavnvcdsevscccces 31

Garrison v. City of Cartersville, 62 Ga. App.

Sle er EE SN ED 6 cose bucwnsdiessdusdenceses 15

Gibson v. Thornton, 107 Ga. 545, 33 S.E. 895

SEE S0Cesccuchacduccaasecdeecsdesnavieees bbceas 31

Gregoire v. Biddle, 177 F.2d 579 (2nd Cir. 1949) ..... 45

Guedry v. Ford, 431 F.2d 660 (5th Cir. 1970) .... 40,41

Hood v. Hood, 130 Ga. 610, 61 S.E. 471 (1908) ..... 10

Hughes v. Reynolds, 233 Ga. 727, 157 S.E.2d

PE -wbbcscuupacnevanseessseeenewseese tanec 15

Ingram v. Dunn, 383 F.Supp. 1043 (D.C. Ga.)

aff'd. 514 F.2d 1070 (5th Cir. 1974) ........... 4,48,49

In re Electric Supply Co., 175 F. 612 (D.C. Ga.

biedikisb Laden eeaeeeaaetoeeewens 31

In re Prisoners Awaiting Transfer, 236 Ga.

ek crest ED en EE ono seks nukednenecs 3,34,35

In re Union Club, 142 Ga. 261, 82S.E.643(1914)...... 31

Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83

NE ED Gtécrcenuddd dibeiendsbuasavere 5,50

TABLE OF AUTHORITIES (Continued)

Page

Lloyd v. Lloyd, 183 Ga. 751, 189 S.E. 903 (1937). ...5,10,

35,37,44,54,55

Lucarell v. McNair, 453 F.2d 836 (6th Cir. 1972) .... 5,6,

11,52

Lynch v. Johnson, 420 F.2d 818 (6th Cir. 1970) ... 6,52

McNeese v. Board of Education, 373 U.S. 668,

83 S.Ct. 1433, 10 L.Ed.2d 622 (1963) ............ 5,50

Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5

Rennes Gib CEBDE) oc ccccccccccccessccccees 5,11,50,52

Osbekoff v. Mallory, 188 N.W.2d 294 (lowa

1971), annotated at 64 ALR 3d. 1242 ....... 35,41,54

Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18

Sa GP COED ccccccssccceseccsvececcess passim

Randall v. Brigham, 74 U.S. 523, 19 L.Ed. 285

CEE 5 acc0nceeeepeeccnecntesnecsesennsesseues 15,59

Richardson v. Coker, 188 Ga. 170, 3 S.E.2d 636

SEED 6.065.000 4ssnesscernsebusnesseseresaus«asess 15

Richardson v. Hotel Corp. of America, 322

F.Supp. 579 (E.D. La. 1971), aff'd. 468 F.2d

Se ES EEE 'sb-ndacvieeddeedehecceudaenece 11

Richter v. Richter, 202 Ga. 554, 43 S.E.2d 635

CBDGT) cccccccccccscccccccccceccccceccvecsoccecess 31

Shaw v. Hospital Authority of Cobb County,

507 F.2d 625 (C.A. Ga. 1975) ...........eeees 3,14-15

Starnes v. Mutual Loan and Banking Co., 102

Ga. 507, BB O.B. GBB (IGS) on cc ccccccccccccccess 25

TABLE OF AUTHORITIES (Continued)

Page

Stump v. Sparkman, No. 76-1750 ................ i,28

Toler v. Goodwin, 74 Ga. App. 468, 40 S.E.2d

tt MiSUisich bade ewhestek bein sasseveoseees 31

Tyler v. Vickerey, 517 F.2d 1089 (C.A. Ga.

EEE OEE EE Se a a a 3

Wade v. Bethesda Hospital, 356 F.Supp. 380

ER 6,28,35,52,55,56

White v. Davis, 134 Ga. 274,67S.E.716(1910) ..... 31

Williams v. Sepe, 487 F.2d 913 (5th Cir. 1973) ... 3,38,

40,41

Young v. Harrison, 6 Ga. 130, __. S.E. ___

EEE OE 32

CONSTITUTIONS CITED

Coustitution of the United States, 14th

I A . 7,14,20

Constitution of Georgia of 1912 .................. 30

Constitution of Georgia of 1945, Bill of

Rights, Sections 2-101, 2-102, 2-103 and 2-

Dt tiie eeekkeeteeaveseuseseeneess 13,14,24,26

STATUTES CITED

Title 28, United States Code, Section 1254(1)....... 2

Title 42, United States Code, Section 1983 .. passim

Georgia Code Annotated, Section 3-1002 ......... 13

Georgia Code Annotated, Section 22-712 ......... 30

Georgia Code Annotated, Section 22-1315 ..... 32,44

Georgia Code Annotated, Section 22-1316 ...32,33,44

TABLE OF AUTHORITIES (Continued)

Page

Georgia Code Annotated, Section 22-1317 ..... 32,44

Georgia Code Annotated, Section 22-1322 ........ 32

Georgia Code Annotated, Section 24-2605 ........ 14

Georgia Code Annotated, Section 24-2615 ........ 31

Georgia Code Annotated, Section 30-203 .... passim

RULES CITED

Rule 12(b)(6) of the Federal Rules of Civil

PRED. Sééucacmiscesenadadeeueesenee 8,9,12,27,49

Rules 15, 19, 20, 21 of the Federal Rules of

ID bc cckadsies cease bedéadieddennes 7

Rule 21 of the Local Rules ofthe Fifth Circuit...... 49

Rule 19(1)(b) of the Revised Rules of the

I ii eae eeauens 2

TEXTS CITED

16 Am Jur 2d. §546, Alimony ..................... 21

16 Am Jur 2d. §547, Alimony ..................... 21

16 Am Jur 2d. §548, Alimony ....... ietwnee nets’ 23

17 Am Jur §496, Divorce and Separation ......... 36

Pe ee ED badd ccccesodcccesevanes 26,27,51

Legislative History of Civil Rights Acts, The

Congressional Globe, March 31, 1871, Mr.

DEE dkschahiunsssabdaetedsecedanhak canes) 24

Legislative History of Civil Rights Acts, The

Congressional Globe, April 1, 1871, Mr.

NOE 6envdecksccaceee peaeeteeesucesueetenscecs 34,53

vii

TABLE OF AUTHORITIES (Continued)

Page

19 Corpus Juris 262, §610, Alimony ............-. 36

i Hornstein Corporation Law and Procedure

BITS (1GDD) 2... cccccccccccccccccccccccccceccccess 30

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

PLEASANT RICHARD TALLY

(a/k/a DICK TALLY),

Petitioner,

versus

WILLIAM P. JOHNSON, et. al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Petitioner, Pleasant Richard Tally, prays that

the Supreme Court of the United States issue a Writ of

Certiorari to review the judgment of the U. S. Court of

Appeals for the Fifth Circuit in Civil Action No. 77-

2339, rendered on December 8, 1977, petition for

rehearing and suggestion for rehearing en banc de-

nied, January 6, 1978, affirming without opinion the

judgment of the U. S. District Court for the Northern

District of Georgia, Civil Action No. 77-359A, dis-

missing plaintiff's claim for relief under 42 U.S.C. 1983

for the reason that the state court judge was immune to

suit.

OPINIONS BELOW

The judgment of affirmance without opinion of the

United States Court of Appeals for the Fifth Circuit is

reproduced as Appendix A, p. 1a; and the order of the

Fifth Circuit denying the petition for rehearing and

suggestion for rehearing en banc is reproduced as

Appendix B, pp. 2a-3a.

Since the United States Court of Appeals for the

Fifth Circuit adopted verbatim the decision ofthe U. S.

District Court for the Northern District of Georgia by

affirmance without opinion, the judgment and opin-

ion of the U. S. District Court is reproduced as Appen-

dix C, pp. 3a-7a; and the order denying plaintiff's mo-

tion to alter or amend the judgment is reproduced as

Appendix D, p. 7a.

Appendices E, F andG are printed at pp. 8a-42a for

the convenience of the Court and will be referred to

within the text of this petition.

JURISDICTION

The judgment of the United States Court of Appeals

for the Fifth Circuit was made final by affirmance

without opinion rendered on December 8, 1977; and the

petition for rehearing and the suggestion for rehear-

ing en banc was denied by order entered on January 6,

1978. This petition for a writ of certiorari was timely

filed in the Supreme Court of the United States within

ninety (90) days of January 6, 1978. The jurisdiction of

the Supreme Court of the United States is invoked un-

der 28 U.S.C. 1254(1) and Rule 19.1(b) of the Revised

Rules of the Supreme Court of the United States.

QUESTIONS PRESENTED

Did affirmance without opinion by the panel of the

U. S. Court of Appeals for the Fifth Circuit con-

stitute error as a matter of law in that the holding

of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), was

disregarded; to wit, the substantive law ofthe State

of Georgia defining what is “without juris-

diction” in orders of state court judges, as pro-

nounced in Coweta Bonding Company v. Carter,

230 Ga. 585 (1976) and In re Prisoners Awaiting

Transfer, 236 Ga. 516 (1976), was not applied by the

U. S. District Court sitting in the forum state of

Georgia in determining what is “in the clear

absence of jurisdiction” for purposes of whether or

not immunity applied to this Georgia state court

judge in restraining the ‘fundamental, natural, in-

herent, most sacred and valuable right of any

(Georgia) citizen’’, as defined in Shaw v. Hospital

Authority of Cobb County, 507 F.2d 625 (C.A. Ga.

1975), and Tylerv. Vickerey, 517 F.2d 1089 (C.A. Ga.

1975)?

Did affirmance without opinion by the panel of the

U. S. Court of Appeals for the Fifth Circuit con-

stitute error as a matter of law in equating the facts

pleaded in the amended complaint to the facts

found in Pierson v. Ray, 386 U.S. 547 (1967), and

Williams v. Sepe, 487 F.2d 913 (5th Cir. 1973), in

total disregard of the mandates of Conley v. Gib-

son, 355 U.S. 41 (1957) and Cook & Nichol, Inc. v.

Plimsoll Club, 451 F.2d 505 (5th Cir. 1971), when

counsels for Appellant in the Brief on Appeal

clearly demonstrated the distinction between “in

excess of jurisdiction’, Pierson v. Ray, supra, not

on point with the facts of the case at bar, and “in the

clear absence of jurisdiction” factually well plead-

ed in the amended complaint of petitioner, using

the instrument of state authority central to the

issue presented, the order of the state court judge

to prove the liability asserted under 42 U.S.C. 1983?

Did affirmance without opinion by the panel of the

U.S. Court of Appeals for the Fifth Circuit con-

stitute error as a matter of law in misapplying the

test of judicial immunity as enunciated in Bradley

v. Fisher, 80 U.S. 335 (1871), so that now there are no

factual circumstances left open which may be

pleaded where immunity would not apply, over-

ruling sub silentio Cross v. Byrum, 348 F.Supp. 196

(S.D. Florida 1972), which reached the opposite

conclusion of law on an identical motion to dis-

miss by a state court judge which was denied?

Has the panel of the U. S. Court of Appeals for the

Fifth Circuit by affirmance without opinion over-

ruled sub silentio the rule of law in Ingram v.

Dunn, 383 F.Supp. 1043 (D.C. Ga.), affirmed 514 F.2d

1070 (5th Cir. 1974), wherein the court stated that

the fundamental tenets of tort law have applica-

tion in cases brought under 42 U.S.C. 1983, and

claims under that statute are to be viewed against

the background of tort liability which makes a

man responsible for the natural consequences of

his acts?

Did affirmance without opinion by the panel of the

U. S. Court of Appeals for the Fifth Circuit con-

stitute error as a matter of law because Ga. Code

Ann. 30-203, the temporary alimony statute, as ful-

ly construed by the Supreme Court of Georgia in

Lloyd v. Lloyd, 183 Ga. 751 (1937), could not

authorize the transfer of possession and control of

a Georgia corporation as postulated by the U. S.

District Court, which state decision by the highest

appellate court in Georgia was not followed by the

federal trial court sitting in the forum state of

Georgia as mandated by Erie R. Co. v. Tompkins,

304 U.S. 64 (1938)?

Did affirmance without opinion by the panel of the

U. S. Court of Appeals for the Fifth Circuit of the

U. S. District Court's order constitute error of law

in denying petitioner’s motion to alter or amend

the judgment dismissing the complaint when the

U.S. District Court based its denial upon the

reasoning that petitioner's remedy was an appeal

of the state court proceeding, not a civil rights ac-

tion against the state court judge, which reason-

ing contradicts the long-settled rule in civil rights

actions brought under 42 U.S.C. 1983 that such

suits are free of the requirement that state judicial

or administrative remedies must first be exhaust-

ed as pronounced by this Court in Lane v. Wilson,

307 U.S. 268 (1939); Monroe v. Pape, 365 U.S. 167

(1961); and McNeese v. Board of Education, 373 U.S.

668 (1963); which settled doctrine was again recent-

ly approved by the U. S. Court of Appeals for the

Sixth Circuit in Lucarell v. McNair, 453 F.2d 836

(6th Cir. 1972)?

7. Has the final judgment of the U. S. Court of

Appeals in Pleasant Richard Tally v. William P.

Johnson, et. al. embarked the Fifth Circuit on a

silent and defiant course 180 degrees removed

from decisions previously rendered; namely,

Cross v. Byrum, 348 F.Supp. 196 (S.D. Florida

1972); Lynch v. Johnson, 420 F.2d 818 (6th Cir. 1976);

Lucarell v. McNair, 453 F.2d 836 (6th Cir. 1972);

Azar v. Conley, 456 F.2d 1382 (6th Cir. 1972); and

Wade v. Bethesda Hospital, 356 F.Supp. 380 (S.D.

Ohio 1973), so that the Fifth Circuit will ultimately

flounder by now persisting to place both U. S. cir-

cuits in direct conflict with each other in treating

the same legal issue?

8. Did the final decision of the U. S. Court of Appeals

for the Fifth Circuit by affirmance without opin-

ion ignore the question brought to it on appeal,

“What is meant by the term subject matter?’’, for

purposes of deciding “jurisdiction” under Georgia

law in the transfer, withoutin rem or in personam

jurisdiction by civil court process, of possession

and control of a Georgia corporation owned by

more parties that those before the state court judge

— “It is the judges’ duty to decide all cases within

their jurisdiction that are brought before them.” —

which is the only paraphrase of a single sentence

in Pierson v. Ray applicable between this Court’s

decision in 1967 and the case at bar?

STATEMENT OF THE CASE

(A) The Proceedings Below:

Pleasant Richard Tally brought this civil action in

the United States District Court for the Northern Dis-

trict of Georgia on March 2, 1977, against William P.

Johnson, Homer Williams and Aubrey W. Gilbert un-

der Title 42, United States Code, Section 1983, because

these defendants in a state court proceeding for legal

separation between Frances White Tally and Pleasant

Richard Tally perpetrated the transfer by court order

of a Georgia corporation, Style Crest Southeast Co.,

Inc., owned by more parties than the husband and wife

before the state court judge (defendant Homer

Williams owned 900 shares of Style Crest) without due

process due to a lack ofin personam or in rem jurisdic-

tion of the corporation; and further, these defendants

had the state court judge enjoin Pleasant Richard

Tally’s fundamental right to earn a living out of that

corporation of which he was a better than one-third

(1/3) shareholder with the result to deprive the

“property” and “liberty” rights secured by the U. S.

Constitution and the statute.

On March 28, 1977, Pleasant Richard Tally moved

under Rules 15, 19, 20 and 21 to amend the complaint

before answer or motion and to add as a party defen-

dant the state court judge, Lamar H. Knight. The entire

claim for relief as stated in the amended complaint is

printed as Appendix E, pp. 8a-15a.

On April 4, 1977, William P. Johnson and Aubrey W.

Gilbert moved the U. S. District Court to dismiss the

claim for relief claiming a qualified privilege of im-

munity in that they were private attorneys acting ina

state court proceeding and therefore not liable to suit

under the statute. On April 4, 1977, Homer Williams

moved for summary judgment (later construed as a

motion to dismiss) claiming he was a private person

and therefore not amenable to suit under 42 U.S.C.

1983.

On April 22, 1977, Lamar H. Knight moved the U. S.

District Court to dismiss the amended complaint un-

der Rule 12(b)(6) claiming the doctrine of judicial im-

munity applied, citing Pierson v. Ray, 386 U.S. 547

(1967). The motion to dismiss of defendant Knight is

printed as Appendix F, pp. 17a-18a.

On May 4, 1977, Pleasant Richard Tally traversed the

assertion of judicial immunity or that Pierson, which

stands for ‘in excess of jurisdiction’, applied since the

amended complaint and the response to the motion to

dismiss of Pleasant Richard Tally clearly distin-

guished Pierson on its facts and showed the plaintiff's

facts amounted to “in the clear absence of juris-

diction”. The Responsive Brief to Knight's Motion to

Dismiss is printed as Appendix G, pp. 26a-42a.

On June 3, 1977, the U. S. District Court under

authority of Rule 12(b)(6) dismissed the amended com-

plaint as to all the defendants for failure to state a

claim upon which relief could be granted. The District

Court in its order attached to the dismissal, Appendix

C, pp. 4a-7a, found (1) that Pleasant Richard Tally

owned 1,000 shares of Style Crest Southeast Co., Inc.;

(2) Frances White Tally owned 1,000 shares of Style

Crest; (3) Homer Williams owned 900 shares of Style

Crest; (4) the interlocutory decree of separation

between Frances White Tally and Pleasant Richard

Tally, which petition for legal separation was drawn

by defendant, William P. Johnson, which petition

never mentioned the Georgia corporation, Style Crest

Southeast Co., Inc. or the respective shareholder in-

terests therein was signed by state court judge, Lamar

H. Knight; to wit, in the words of the District Court:

“plaintiff's interest in Style Crest was award-

ed to Frances White Tally and Lamar H.

Knight ordered plaintiff to refrain from enter-

ing the premises of the corporation.” (R.-300).

“Plaintiff claims that all the defendants con-

spired in the divorce proceeding to deprive

him of the constitutional right to earn a liv-

ing.”’ (R.-300).

With the last statement, Petitioner is in agreement

with the U.S. District Court; namely that ‘all the

defendants conspired to deprive him of the constitu-

tional right to earn a living”, which finding of con-

spiracy is cognizable in the Fifth U. S. Circuit and ac-

tionable under 42 U.S.C. 1983. However, the District

Court committed legal error in derogation of the man-

dates of Conley v. Gibson, 355 U.S. 41 (1957) and Cook &

Nichol, Inc. v. Plimsoll Club, 451 F.2d 505 (5th Cir.

1971) in premising the dismissal under Rule 12(b)(6)

upon the transfer of “plaintiffs interest in Style

Crest”, implying the transfer of personalty; namely

the 1,000 shares of stock owned by Pleasant Richard

Tally, when in fact, the court order of defendant Lamar

H. Knight recites ‘transfer of possession and control

of the corporation, Style Crest” (R.-166, 323).

The U. S. District Court, in error, found further “that

Ga. Code Ann. 30-203, the temporary alimony statute,

empowered the state judge to dispose of Pleasant

Richard Tally’s share holdings in Style Crest.” On

June 13, 1977, Pleasant Richard Tally moved to alter or

amend the judgment dismissing the claim for relief.

The legal basis asserted by petitioner was the

Supreme Court of Georgia's holding in Lloyd v. Lloyd,

183 Ga. 751, 189 S.E. 903 (1937), in which Ga. Code Ann.

30-203, the temporary alimony statute, was construed:

‘Alimony’ is a technical word, theoretically

restricted to personalty, and practically to

money. It is payable out of the husband's es-

tate, real as well as personal. But the word

never covers the estate itself.’ 189 S.E. 903, at

904.

Nowhere in Ga. Code Ann. 30-203, quoted in toto at (R.-

308) is the state court judge, contra the District Court's

finding, ‘““empcowered to make a disposition of plain-

tiffs share holdings in Style Crest’, or transfer

possession and control of a Georgia corporation,

without due process of law, and without in personam

or in rem jurisdiction of the Georgia corporation.

Nowhere in Ga. Code Ann. 30-203 is the state court

judge empowered to restrain Pleasant Richard Tally

from pursuing his constitutional, fundamental right

to earn a living usurping the powers of the cor-

poration’s shareholders and Board of Directors by

depriving the corporation of the salesman “who effec-

tively produced over 90% of the corporate accounts”.

(R.-53). In the language of the holding of the Supreme

Court of Georgia in Hood v. Hood, 130 Ga. 610, 61 S.E.

471 (1908), “property (Style Crest Southeast Co., Inc.)

must be subjected to the power of the court in some

manner making it a thing proceeded against.” The or-

der of Lamar H. Knight, forthe first time, mentions the

ee ee ee ee. ee — ane :

corporation, Style Crest. In deciding the motion to

alter or amend the judgment, the U. S. District Court,

on June 28, 1977, answered:

“The plaintiff's remedy, assuming an error

on the part of Judge Knight, was an appeal of

the order, not a civil rights action against the

judge”, citing Pierson v. Ray, 386 U.S. 547

(1967) (R.-345).

Such error of law by the District Court on the motion to

alter or amend is corrected by:

It is no answer that the state has a law which if

enforced would give relief. The federal remedy

is supplementary to the state remedy, and the

latter need not be first sought and refused

before the federal one is invoked. Monroe v.

Pape, 365 U.S. 167, p. 183, 81 S.Ct. 473, 5

L.Ed. 2d. 492 (1961) quoted in Lucarell v. Mc-

Nair, 453 F.2d 836 (6th Cir. 1972), which latter

case was rendered after Pierson v. Ray, supra.

(R.-393).

Motions for award of attorneys fees by the defen-

dants were properly and correctly denied by the Dis-

trict Court. See Richardson v. Hotel Corp. of America,

322 F.Supp. 579 (E.D. La. 1971), aff’d 468 F.2d 951 (5th

Cir. 1972). Plaintiff's motion for stay of execution of

costs pending appeal to the Fifth Circuit was granted

on June 28, 1977.

On December 8, 1977, a panel of the United States

Court of Appeals for the Fifth Circuit decided, per

curiam, that the dismissal of Appellant’s amended

complaint by the U.S. District Court under Rule

12(b)(6) of the Federal Rules of Civil Procedure should

be affirmed without opinion.

On January 6, 1978, a panel of the United States

Court of Appeals for the Fifth Circuit decided, without

opinion, to deny the petition for rehearing and sugges-

tion for rehearing en banc.

On January 11, 1978, Pleasant Richard Tally filed a

motion to stay the mandate for costs pending a peti-

tion for a writ of certiorari to the United States

Supreme Court which was granted by the Fifth Circuit

Court of Appeals.

Here now is the petition of Pleasant Richard Tally to

this Court.

(B) The Fundamental Constitutional Right

of Pleasant Richard Tally in Issue:

It has been inaccurately asserted by counsel for

Judge Lamar H. Knight that:

“The issue of the property rights in the

divorce action was litigated and resolved in

the 1969 Coweta Superior Court action. This

baseless attempt to relitigate what happened

in 1969 should not result in an expense to the

defendants...’

“Considering the fact that the plaintiff in

this action seeks damages from a judge, ignor-

ing the well known doctrine of judicial im-

munity and considering the frivolous nature

of this action, the suit is even more meritless

and vexatious.” (R.-341).

It has also been asserted by counsel for William P.

Johnson that injury to personalty; namely, conver-

sion of plaintiff's shares of stock governed by Ga.

Code Ann. 3-1002 (R.-74) is herein involved.

Neither assertion is accurate.

“A denial by Defendant Lamar H. Knight of the con-

stitutional requirements of substantive and

procedural due process of law and total divestiture of

the constitutional, fundamental right to earn a living

through the clear absence of in rem or in personam

jurisdiction of the subject matter, Style Crest South-

east Co., Inc., a Georgia corporation, which was trans-

ferred under the sham of color of state law” (R.-359) is

the federal question herein involved and such federai

question will never be frivolous, meritless, vexatious,

or baseless.

‘““No person shall be deprived of life, liberty

or property except by due process of law.”

Constitution of Georgia of 1945, §2-103 (6359).

“Protection to person and property is the

paramount duty of government, and shall be

impartial and complete.” Constitution of

Georgia of 1945, §2-102 (6358).

“I swear that I will administer justice

without respect to person, and do equal rights

to the poor and the rich, and that I will faith-

fully and impartially discharge and perform

all the duties incumbent on me as judge of the

superior courts of this State, according to the

best of my ability and understanding and

agreeably to the laws and Constitution of this

State, so help me God.” Ga. Code Ann. 24-2605,

The Oath of Judges (4835).

“All Government, of right, originates with

the people, is founded upon their will only, and

is instituted solely for the good of the whole.

Public officers are trustees and servants of the

people, and at all times amenable to them.”

Constitution of Georgia of 1945, Bill of Rights,

§2-101 (6357).

The transfer of the Georgia corporation by order of

the state court judge and the restraint of this

Petitioner's right to earn a living under penalty of con-

tempt and confinement in state jail must be carefully

scrutinized by this Court, for it was the instrument of

state authority which was brought to bear to effect the

“property” and “liberty” rights violated.

Petitioner’s claim alleged violations of the “proper-

ty” and “liberty” interests guaranteed by the Four-

teenth Amendment of the U. S. Constitution and 42

U.S.C. §1983; to wit, the fundamental right to earn a liv-

ing secured by ownership of the business out of which

the living was pursued. “The term, ‘liberty’, ... ex-

tends to the full range of conduct which the individual

is free to pursue, including the right to practice any of

the common occupations of life.” Shaw v. Hospital

= Aa nha ere nage TD Cane tie,

Jee Mee ek ee

eee

Authority of Cobb County, 507 F.2d 625 (C.A. Ga. 1975).

“The right to earn a living is a fundamental, natural,

inherent and most sacred and valuable right of any

citizen and cannot be violated without due process of

law. A person’s business or calling is ‘property’

within the meaning of the due process clause of the

U. S. Constitution.” See DeBerry v. City of La Grange,

62 Ga. App. 74, 8 S.E.2d 146 (1940), followed in Garri-

son v. City of Cartersville, 62 Ga. App. 85, 8 S.E.2d 154

(1940); Hughes v. Reynolds, 223 Ga. 727, 157 S.E.2d 746

(1967); and Richardson v. Coker, 188 Ga. 170, 3 S.E.2d

636 (1939).

THE FEDERAL STATUTE INVOLVED

‘No court can create a jurisdiction for itself by

its own statement of facts put on the record (or

order of the court), without any proceedings as

the basis of such record (or order of the court).”

Bradley v. Fisher, 80 U.S. 335, at 357 (1871). “If

the alleged trespasser be a judge of a court of

record, the only question is: Was the actdonea

judicial act, within his jurisdiction? Of this he

is not the judge. If it was not and ..e acted

without jurisdiction he has ceased to be a

judge.” Randall v. Brigham, 74 U.S. 523, 19

L.Ed. 285 (1868).

“Willful abuse of power, corrupt exercise of

office, express malice towards an individual

and working intentional injury to him by

means of false (unauthorized) entries made by

a judge on the records of a court of general

jurisdiction, are not judicial acts and are not

within the discretion of the judge; and satis-

factory proof of those facts is admissible in

evidence in actions to usurp the wrong done by

such acts; to show that in a particular case the

judge attempted to create for himself a juris-

diction and discretion not given by the law.”

Bradley v. Fisher, 80 U.S. 335, at 358 and cases

cited therein (1871).

STATE OF GEORGIA

CARROLL SUPERIOR COURT

CARROLL COUNTY

Civil Action, File No. 6122

FRANCES WHITE TALLY

Plaintiff,

VS.

PLEASANT RICHARD TALLY

Defendant.

SUMMONS

Suit for Divorce, etc.

To the above-named Defendant: Pleasant Richard

Tally

You are hereby summoned and required to file

with the Clerk of said Court and serve upon John-

son & Beckham Plaintiff's attorneys, whose ad-

dress is 201-4 Peoples Bank Building, Carrollton,

Georgia 30117 an answer to the complaint which is

herewith served upon you, within 30 days after

St ne ae ORI acti Bet 4 an ~~ ade

a a

service of this summons, upon you, exclusive of

the day of service. If you fail to do so, judgment by

default will be taken against you for the relief

demanded in the complaint.

IN THE

SUPERIOR COURT FOR THE

COUNTY OF CARROLL,

STATE OF GEORGIA

FRANCES WHITE TALLY

PLEASANT RICHARD TALLY

Civil Action, File No. 6122

Suit for divorce, etc.

* * *

The parties are the owners of real estate located

at 1357 Cecilia Drive, S.E., according to the num-

bering of the City of Atlanta, together with a 1956

Ford, 1962 Ford Fairlane, 1959 Ford Galaxie, 1963

Econoline Ford, boat and motor, house trailer and

contents, $1,000.00 worth of stock. Also, the defen-

dant has money at Atlanta General Depot, No. 1

and No. (sic) Fort McPherson Credit Union,

Citizens Bank and Trust Company, he has acheck-

ing account at the Bank of Fulton County in East

Point. Plaintiff asks that the defendant be enjoined

and restrained from changing the status of, dis-

posing of or encumbering any of the property

listed above.

Plaintiff asks the court to grant her a divorce

from said defendant, together with temporary and

permanent child support, temporary and perma-

nent alimony, and a reasonable sum as attorney

fees.

WHEREFORE, plaintiff demands:

a) that rule nisi issue directed to the defendant

requiring him to show cause on a day certain why

plaintiff should not be awarded temporary and per-

manent custody of said children, why he should not

be required to pay temporary and permanent child

support and alimony, attorney fees and why he

should not be enjoined from disposing of, encum-

bering or changing the status of the property men-

tioned herein;

. * 7

JOHNSON & BECKHAM

BY:

/s/

William P. Johnson

201-4 Peoples Bank Bldg.

Carrollton, Georgia

30117

ATTORNEYS FOR PLAINTIFF

GEORGIA, CARROLL COUNTY

FRANCES WHITE TALLY

PLEASANT RICHARD TALLY

CARROLL SUPERIOR COURT

The within and foregoing case coming on to be

heard, and after hearing from the parties and their

counsel,

IT IS HEREBY ORDERED, CONSIDERED and

ADJUDGED that temporary possession and con-

trol of Stylecrest is hereby awarded to the plain-

tiff. The home on Cecilia Drive in Atlanta,

Georgia, together with the housetrailer, is tem-

porarily awarded to the husband, the defendant.

Further ORDERED that defendant shall pay to

the plaintiff the sum of $120.00 per month as child

support. Said payments to begin October 1, 1969,

and to continue until further order of this court.

Further ORDERED that defendant shall pay to

the plaintiff the sum of $125.00 as attorney fees, on

or before October 15, 1969.

Further ORDERED that defendant shall have

the right to visit with his children on the first and

third Sunday afternoons, from 1:00 P.M. until 7:00

P.M., until further order of this Court.

AND IT IS SO ORDERED, this 16th day of

September, 1969.

/s/ Lamar H. Knight

JUDGE,

Carroll Superior Court

(R.-161 to 166).

The state court judge attempted to create for himself

a jurisdiction over Style Crest Southeast Co., Inc. not

given by law. Lamar H. Knight willfully abused the

power and exercise of his office, usurping authority,

working intentional, injury to Pleasant Richard Tally

by means of false (unauthorized) entries on the rec-

ords of a court of general jurisdiction. The order of

Lamar H. Knight was not a judicial act within the stat-

utory power of Ga. Code Ann. 30-203 and not within the

discretion of the judge.

“The Defendant, Judge Lamar H. Knight, un-

der color of state authority, in a state proceed-

ing for divorce, without subject matter juris-

diction of the corporation, Style Crest, or of all

the shareholders thereof, and without notice

or opportunity to be heard as to the respective

civil rights of the Plaintiff in this action, Plea-

sant Richard Tally, as required by the

substantive and procedural due process

provisions of the 14th Amendment ofthe Unit-

ed States Constitution and 42 U.S.C. §1983, did

deliberately and unconstitutionally transfer

possession and control of the entire interest in

Style Crest to Frances White Tally, the plain-

tiff in the state proceeding for divorce.” (R.-55)

Count 5 of the Amended Complaint.

“Every person, who, under color of any stat-

ute, ordinance, regulation, custom or usage, of

any State or Territory, subjects or causes to be

subjected any citizen of the United States or

other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or

immunities secured by the Constitution and

laws shall be liable to the party injured in an

action at law, suit in equity, or other proper

proceeding for redress.”’ 42 U.S.C. §1983 (R.-

53).

The term, “due process of law”, includes all the steps

essential to deprive a person of life, liberty, or proper-

ty; it includes all the forms and acts essential to its

application and to give effect to it. The means that may

be employed to accomplish the purpose of the law is

the process; in other words, “process”, is the mode by

which the purpose of the law may be effected. The

term, “law”, as used in this guaranty embraces al]

legal and equitable rules defining human rights and

duties between the state and its citizens. The term,

“due process of law”, as used in the Federal Constitu-

tion has been repeatedly declared to be the exact

equivalent of the phrase “law of the land”’, as used in

the Magna Carta. 16 Am Jur 2d 546, 547.

If statutory power had existed,

“In order for the Defendant, Judge Lamar H.

Knight, to have had proper subject matter

jurisdiction over Style Crest Southeast Co.,

Inc., on September 16, 1969, one of two legally

necessary acts would have had to have oc-

curred: (a) process would have had to have is-

sued from the Superior Court of Carroll Coun-

ty attaching some personal or real property

asset of Style Crest, or (b) the Defendant,

Lamar H. Knight, would have had to have had

all shareholders of the corporation before the

court by means of personal service of process

on all such shareholders. (R.-145).

The guaranty of due process of law required Defen-

dant Judge Lamar H. Knight to observe the Constitu-

tion and laws of the State of Georgia applicable to all

Georgia citizens.

‘‘No process whatsoever issued at any time

against either the assets of Style Crest, or

against all the shareholders. Thus, the Defen-

dant, Lamar H. Knight did not have in rem

jurisdiction of Style Crest on September 16,

1969, and further, said Defendant did not have

in personam jurisdiction over all the share-

holders, as Defendant, Homer Williams, who

owned 900 shares of stock in Style Crest

Southeast Co., Inc., was never personally

served with process or made aparty tothe suit

for divorce instituted by Frances White Tally

against Pleasant Richard Tally.” (R.-145).

= en ee ee one

Procedural due process may be defined as the aspect

of due process which relates to the requisite char-

acteristics of proceedings looking toward a depriva-

tion of life, liberty, or property; procedural due

process makes it necessary that one whom itis sought

to deprive of such a right must be given notice of the

fact that the state court will adjudicate his rights ina

Georgia corporation in the notice of the proceedings;

he must be given an opportunity to defend himself on

those rights in the Georgia corporation; and the prob-

lem of the propriety of the deprivation, under the

circumstances presented, must be resolved in a

manner consistent with essential fairness. Judgment

without such notice or citation in the petition for

divorce, without opportunity to defend, without stat-

utory authority, without in rem or in personam juris-

diction lacks all the attributes of a judicial determina-

tion. It is usurpation and oppression and can never be

upheld where justice is fairly administered. 16 Am Jur

2d. 548.

“Shall it be said thata citizen may be wrong-

fully deprived of his life, liberty, and property

in his own country and the national arm can-

not be extended to him... whose duty it is to

afford him redress, but refuses or neglects to

discharge such duty? Such theory may be

palpable to the minds of men who have been

too much educated in the technicalities which

make the remedy depend upon the form of ac-

tion, but it must be impalpable logic, indeed, to

those whose lives, liberties, and properties are

all at the (state authorities’) mercy.”

Legislative History of the Civil Rights Acts of 1871,

The Congressional Globe, March 31, 1871, p. 368, Mr.

Sheldon.

Yet, the District Court refused or neglected to dis-

charge its duty when it dismissed the amended com-

plaint.

The constitutional question pleaded by this

Petitioner both in the amended complaint and the an-

swers to the motions to dismiss reaches beyond the

answer rendered by the District Court in dismissing

the claim for relief as follows:

“ .. it is clear that Judge Knight had

jurisdiction over the divorce proceedings in

question and was empowered to make a dis-

position of plaintiff's share holdings in Style

Crest under Ga. Code Ann. Section 30-203.

Defendant Knight is therefore immune to suit

under Section 1983.”

The fallacies underlying this reasoning by the Dis-

trict Court are the issues on appeal by petition.

“The Superior Courts shall have exclusive

jurisdiction in cases of divorce.. .’’ Constitu-

tion of Georgia of 1945, Section 2-3901.

“The General Assembly must have con-

sidered that the word ‘jurisdiction’ as

employed in Section 5856 and 5859, related

only to subject matter and matters of practice

for the act simply quotes the language of the

Constitution prescribing the kinds of cases

over which the justices shall have juris-

diction ....” Starnes v. Mutual Loan and

Banking Co., 102 Ga. 597 at 601, 29S.E. 452, 454

(1897).

If the basis of the District Court’s dismissal of

petitioner’s amended complaint was that the Defen-

dant Lamar H. Knight had “jurisdiction” in the state

proceeding for divorce, then the issue, according to the

General Assembly of Georgia and the Georgia

Supreme Court in Starnes, supra, is:

Were the transfer of possession and control of

a Georgia corporation and the restraint of the

natural, inherent, most sacred and valuable

right (of all Georgia citizens); that is, the fun-

damental right to earn a living proper subject

matter for a divorce proceeding? See Bradley

v. Fisher, 80 U.S. 335 (1871).

Under the tests of Bradley and Starnes, the only an-

swer and petitioner’s answer is NO! This will be more

clearly demonstrated in answer to Question 8.

And with the answer being NO, then:

“IT IS HEREBY ORDERED, CONSIDERED

AND ADJUDGED THAT temporary posses-

sion and control of Stylecrest is hereby award-

ed to the plaintiff (Frances White Tally).”

was a “false (unauthorized) entry made by a judge on

the records of a court of general jurisdiction” Bradley

Se lmUmUmUmCmCmCmCmCCOC~—~— ———

v. Fisher, supra. And the restraint of the “natural, in-

herent, most sacred and valuable right to earn a liv-

ing” was in the clear absence of due process, for:

“No person shall be deprived of life, liberty

or property except by due process of law.”

Constitution of Georgia of 1945, §2-103 (6359).

THE COMMON LAW DOCTRINE

It is the general rule that where a judge has juris-

diction he is not liable in a civil action under 42 U.S.C.

1983 for his acts done in the exercise of his judicial

function. The underlying reason for this rule of im-

munity is not the judicial character of the officer but

the judicial character of the act. The privilege of im-

munity applies to judges of courts of superior or

general jurisdiction for acts performed wholly within

their jurisdiction or even for acts performed in excess

of their jurisdiction. However, the non-existence of

jurisdiction does not entitle the state court judge to the

privilege of immunity regardless of the individual

judge's good or bad motivation. Without jurisdiction,

more often termed “in the clear absence of juris-

diction”, the acts are non-judicial in nature and no

privilege insulates the usurper from liability under 42

U.S.C. 1983. A more complete treatment of the common

law doctrine, derived from the practice in England

upon which American jurisprudence is_ based,

appears in 46 Am Jur 2d § 72 through § 83.

Legal scholars have criticized the rationale behind

the privilege of immunity granted to state court

judges, as well as this Court’s rationale behind the

SPA ele, Bat ender eit ancien

eee ae ee) ee ea

landmark case of Pierson v. Ray, 386 U.S. 547 (1967), a

case brought to this Court from the same U.S. Circuit

as the petition now at bar. Whether the criticisms are

justified or not is not in issue in this petition. Whether

Pierson v. Ray, supra, was rightly or wrongly decided

by this Court is not in issue here. Pleasant Richard

Tally’s contention in this petition, consistent with

every pleading that has gone before by him, is that

Pierson v. Ray, supra, was not then and is not now on

point with the unique factual situation of first impres-

sion pleaded in the U.S. District Court and the Court of

Appeals for the Fifth Circuit. Pleasant Richard Tally

v. William P. Johnson, et. al., is the equivalent of the

hypothetical example of Justice Fields in Bradley v.

Fisher, 80 U.S. (13 Wall) 335 (1871)! The injustice from

which the petitioner now appeals to this Court is

violation of Conley v. Gibson, 355 U.S. 41 (1957); Cook

& Nichol, Inc. v. Plimsoll Club, 451 F.2d 505 (5th Cir.

1971); and Rule 12(b)(6) of the Federal Rules of Civil

Procedure. Petitioner has no problems with the state

of the law as annotated in 46 Am Jur 2d § 72 through

§ 83. Petitioner has every reason to complain that

there are no circumstances left open in the Fifth U.S.

Circuit where judicial immunity does not apply.

NATIONAL SIGNIFICANCE OF PLEASANT

RICHARD TALLY v. WILLIAM P. JOHNSON, ET AL.

Since the dismissal under Rule 12(b)(6) on the “bare

bones pleadings” by the U.S. District Court for the

Northern District of Georgia, affirmed without opin-

ion by the Fifth U.S. Circuit Court of Appeals, is in

conflict with case law decisions in the Fifth, Sixth and

now with the opinion of the Seventh U.S. Circuit in

Stump v. Sparkman, No. 76-1750 presently before this

Court, the impact of granting or denying the petition

now before this Court goes far beyond a simple con-

flict of U.S. Circuits on the issue of common law

judicial immunity and civil rights actions brought un-

der 42 U.S.C. 1983. The pleadings present a unique

federal question of first impression because herein is

the hypothetical example of Justice Fields in Bradley

v. Fisher, 80 U.S. 335, at 357, 20 L.Ed. 646 (1871). The

elements of Wade v. Bethesda Hospital, 356 F.Supp.

380 (S.D. Ohio 1973) are here; that is, no express grant

of statutory authority. The elements of Stump v.

Sparkman are here; that is, no judicial proceeding was

then pending before the state court judge involving

transfer of a Georgia corporation or the abortion of the

“natural, inherent, most sacred and most valuable

right of all Georgia citizens” — the fundamental right

to earn a living. But the factual setting of this depriva-

tion of the “property” and “liberty” interests re-

dressable under the federal statute goes clearly

beyond either of the two decisions now under con-

sideration by this Court, Wade or Stump. Pleasant

Richard Tally submits that not until this factual situa-

tion is under consideration as well will this Court

have the area illuminated so that an enlightened prin-

ciple may be handed down.

When this Court considers the constitutional absur-

dity now the law of this case and the law in the Fifth

Circuit, clearly demonstrated by the Henry Ford ex-

ample contained herein, Pleasant Richard Tally,

businessman, salesman and furniture manufacturer

until the incredible sham of state action by a state

court judge, suggests its fullest impact will be felt

upon this Court by stepping into the shoes of Mr. Ford

Ee ee ee

ANI cot AN

and then asking yourselves: Would you work twenty

years only to have this happen to you? The business

community as well as the ler'al profession know that

the time and opportunity are ripe for a definitive

answer.

REASONS FOR GRANTING THE WRIT

Petitioner posits the following to Questions 1

and 5.

Under Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), the

proper elements for the formula of determining anon-

judicial act under Bradley v. Fisher, 80 U.S. 335 (1871),

are to be determined from three questions:

1.) Under the Georgia corporations statutes,

do Superior Court judges have any jurisdic-

tion and authority?

2.) Is the type of order issued by the Appellee

judge in a suit limited to divorce, enjoining the

right to earn a living, within the general

power of the Superior Court judge under

decisions of the State of Georgia?

3.) Has the Georgia temporary alimony stat-

ute been construed so that the husband's title

to a Georgia corporation may be divested by a

Superior Court judge?

The first question was answered by Petitioner inhis

Brief on Appeal as follows:

Lamar H. Knight usurped the corporate powers

granted under Georgia law with the issuance of its

charter to Style Crest Southeast Co., Inc., when he re-

strained and enjoined the Vice-President and Chair-

man of the Board, the producer of ovr 90% of the cor-

porate accounts, from his fundamental] right to earn a

living.

Ga. Code Ann. 22-712, Removal of Officers, states:

(b) An officer or agent elected by the share-

holders may be removed only (emphasis add-

ed) by vote of the shareholders, unless the

shareholders shall have authorized the board

to remove such officer or agent but the

authority of such officer or agent to act for the

corporation may be suspended by the board

for cause.

No meeting of the shareholders, no shareholder ac-

tion, no meeting of the board of directors, no board of

directions action ever took place. Counsels for

Petitioner find no statutory power in the corporation

statutes of Georgia to authorize the order or restraint

of Pleasant Richard Tally. See 1 Hornstein, Corpora-

tion Law and Practice §179 (1959) for the former

Georgia law; to wit, an officer could be removed by the

board of directors with or without cause, although the

officer might recover damages where such removal

entailed breach of an enforceable employment con-

tract.

In 1912, the Constitution of Georgia was amended to

provide that the General Assembly “may confer”

power on the Superior Court vis-a-vis Georgia cor-

2 tow

Oe ee ee ee ee ee

porations; that is, the power to grant charters to manu-

facturing companies. This power; however, “shall be”

exercised in a manner which the legislature “shall

prescribe by law”. See Free Gift Society No. 25 v.

Edwards, 163 Ga. 857 at 864, 137 S.E. 382 (1927); the

Superior Court’s power to grant charters is not

judicial, but legislative. See Creswill v. Knights of

Pythias, 133 Ga. 837 at 847, 67 S.E. 188 (1910); White v.

Davis, 134 Ga. 274 at 280, 67 S.E. 716 (1910); In re Union

Club, 142 Ga. 261, 82 S.E. 643 (1914). Code §24-2615

(4849, 791 P.C.) Powers and Jurisdiction of Superior

Courts:

The superior courts have authority:

(6) Toexercise such other powers, not con-

trary to the Constitution, as are or may be

given to such courts of law. (Act 1799, Cobb,

1135, Acts 1868, p. 131).

Even the equity powers of the superior court could not

have sanctioned the disposition of Style Crest because

equity follows the law. Equity takes jurisdiction of

matters germane to the subject matter only. Transfer

of Style Crest was not germane. Toler v. Goodwin, 74

Ga.App. 468, 40 S.E.2d 214 (1946). ‘We are of the opin-

ion that in the absence of express statutory authority,

a court of equity has no power to dissolve a corpora-

tion, appoint a receiver to administer its assets, wind

up the affairs of the corporation, or distribute its

assets among its shareholders” (emphasis added).

Supreme Court of Georgia, Gibson v. Thornton, 107

Ga. 545 at 562, 564 (1899). See also, In re Electric Supp-

ly Co., 175 F. 612 (D.C. Ga. 1909); Daniel v. Jones, 146

Ga. 583, 91 S.E. 665 (1917); Richter v. Richter, 202 Ga.

554, 43 S.E.2d 635 (1947).

“A private corporation is a contract between

the government and the corporators; and the

Legislature cannot repeal, impair or alter the

rights and privileges conferred by the char-

ter, against the consent and without the

default of the corporation, judicially ascer-

tained and declared in a proceeding instituted

by the government, directly for that purpose.”

Young v. Harrison, 6 Ga. 130, (1849).

The limited and circumscribed power of the

Superior Court to act upon private corporations such

as Style Crest Southeast Co., Inc. is given in Ga. Code

Ann. Sections 22-1315 and following, especially §22-

1317 which provides that in an action by a share-

holder to liquidate the assets and business of a cor-

poration (a) when the directors are deadlocked in

management of the corporate affairs, (b) acts of the

directors are illegal or fraudulent, or (c) shareholders

are deadlocked in voting power; or by a creditor (a)

when his judgment unsatisfied must be realized by li-

quidating the corporation's assets or (b) the creditor's

claim is established versus an insolvent corporation,

the Superior Court has powers. The only other stat-

utory grant of power to the Superior Court is found in

§22-1316 in actions brought by the Attorney General of

Georgia for involuntary dissolution of a Georgia cor-

poration upon certification to the Attorney General by

the Secretary of State that dissolution should be

sought. However in each instance, the statutory grant

of power conferred by the General Assembly begins:

“In proceedings to liquidate the assets and

business of acorporation .. .”’. See §22-1322 as

an example.

sn Ele ee Aa i a elie ae

Wis rend eet ntawh oe.

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+ he Tene itn alt nas nities tease tee alba ileal phan. oe a ote al dae

Petitioner maintains such Statutory grant of power

as “may be conferred by the General Assembly” does

not state: “In proceedings for divorce”. It should be

noted how specific the grant of authority by the

General Assembly is:

§22-1316:

Every action for involuntary dissolution of

a corporation shall be commenced in the name

of the State by the Attorney General ....

Process shall issue and be served as in other

Civil actions.

As pleaded, no process ever issued against Style Crest

because no proceeding was then pending to justify

process, Justify transfer of the corporation to one

shareholder, or justify restraint of the corporation's

Vice-President and Chairman of the Board.

“If there is no remedy for this, if the rights of

citizenship may be denied without redress, if

the Constitution may not be enforced, if life

and liberty may not be effectively protected,

then; indeed, is our civil Government a failure,

and instead of enjoying liberty regulated by

law, its subjects may live only by the suf-

ferance of lawless and exasperated con-

spirators. The cardinal doctrine of our in-

Stitutions is that all citizens are equal before

the law, and that the law shall equally secure

to all their natural and inalienable rights. It is

for the purpose of practically enforcing these

cardinal principles that this bill is proposed.”

Legislative History of the Civil Rights Act, The Con-

gressional Globe, April 1, 1871, Mr. Lowe, p. 368.

The second question was answered by the Supreme

Court of Georgia in Coweta Bonding Company v.

Carter, 230 Ga. 585 (1973) and In re Prisoners Await-

ing Transfer, 236 Ga. 516 (1976). The Supreme Court of

Georgia in 1973 held that prohibiting the fundamental

right to earn a living without statutory authority de-

nied due process of law. In Coweta Bonding Company

v. Carter, 230 Ga. 585, 198 S.E.2d 281 (1973), the order of

the trial judge in denial of a motion to set aside the

forfeiture of a criminal appeal bond attempted to en-

join the fundamental right to earn a living as follows:

“W. W. Craven and the Coweta Bonding

Company are prohibited from writing bonds

in Coweta County and within the Coweta

Judicial Circuit.”

The Supreme Court of Georgia stated that the fun-

damental right to earn a living, the writing of appeal

bonds, was not an issue in the forfeiture proceedings.

The trial record in that case showed that neither W. W.

Craven nor the Coweta Bonding Company was given

notice that any action was pending in this regard (nor

that they were afforded a hearing on their right to earn

a living). ““We here found no authority which sustains

the trian] court’s injunction here without due process

nor has any been cited... . We hold that the trial court

erred in prohibiting W. W. Craven and the Coweta

Bonding Company from writing bonds in Coweta

County within the Coweta Judicial Circuit. Code §24-

2616(4)." 230 Ga., 585 at 589. As pleaded by Petitioner,

Bales er

Sn eee ee et ee ee mis

the Supreme Court of Georgia views the type of order

issued by Lamar H. Knight as “without jurisdiction”.

No supervisory power was given the Superior Court

over the Georgia corporation, Style Crest. No action

was then pending in the Superior Court of the Coweta

Judicial Circuit against Style Crest. No notice or

opportunity to be heard was afforded. The Order was

entered by the judge on his own motion. “The order

was completely void’, in the opinion of the Supreme

Court of Georgia in comparing the order of Lamar H.

Knight to the order of the Superior Court of Colquitt

County in In re Prisoners Awaiting Transfer, 236 Ga.

516 (1976). See also, Wade v. Bethesda Hospital, 356

F.Supp. 380 (1973).

In Osbekoff v. Mallory, 188 N.W. 2d 294 (Iowa 1971),

annotated in 64 ALR 3d. 1242, the Supreme Court of

Iowa found no matter pending in the mayor's court in-

volving the plaintiff's property rights in his auto-

mobile and no process had been issued by the mayor’s

court justifying seizure of the automobile by the court.

The Supreme Court of Iowa held that the magistrate of

the mayor’s court was not judicially immune to suit.

Like, the magistrate in Osbekoff, supra, Lamar H.

Knight is not judicially immune to suit.

The third question was decided by the Supreme

Court of Georgia in Lloyd v. Lloyd, 183 Ga. 751 (1937),

wherein, the state high court laid down the rule for

alimony, in harmony with the prevailing doctrine in

this country. Ga. Code Ann. 30-203 reads in toto:

“In arriving at the provision, the judge shall

consider the peculiar necessities of the wife

growing out ofthe pending litigation; alsoany

evidence of a separate estate owned by the

wife; and if such estate is ample, as compared

with the husband’s temporary alimony may be

refused.”’

The District Court found the Ga. Code Ann. 30-203 *‘em-

powered Judge Knight to make a disposition of Plain-

tiff's share holdings in Style Crest”.

Alimony is the allowance which a husband may be

compelled to pay out of his estate to his wife, ordinari-

ly in money, periodically or in gross, for her mainte-

nance when she is living apart from him. Every provi-

sion in a decree of separation made solely for the pur-

pose of support for the wife is to be regarded as

alimony, whether expressly designated or not. 17 Am

Jur 405, Divorce and Separation §496. The inherent, in-

cidental, or express power of the court to decree

alimony in a divorce action does not empower the

court to set apart to the wife as alimony any specific

property of the husband. Bray v. Landergren, 161 Va.

699, 172 S.E. 252 (1934). In Lloyd v. Lloyd, 183 Ga. 751,

189 S.E. 903 (1937), the Supreme Court of Georgia laid

down the rule for alimony stating that the meaning of

the word is restricted to money, and unless expressly

authorized by statute, no award can be made out of

property of the husband, divesting him of title to the

same, quoting 19 Corpus Juris 262, §610. The Supreme

Court of Georgia further stated:

“The amount given to the wife in a decree of

divorce is generally called ‘alimony’. This

term is derive i from the Latin meaning

Ce A OD ee

SR TO ht aie ty et nse we eA se eld IO) om A al a em

ee rl

basically to nourish; that is, to supply the

necessities of life. It was introduced into

divorce proceedings by the early

ecclesiastical courts of England and in early

practice of the courts it was defined to be ‘that

support which the husband, on separation, is

bound to provide for the wife, and is measured

by the wants of the wife and the circum-

stances and ability of the husband to pay’.”

“Temporary alimony or alimony pendente

lite is a common law right.”

“ *‘Alimony’ is a technical word, theoreticai-

ly restricted to personalty, and practically to

money. It is payable out of the husband's es-

tate, real as well as personal. But the word

never covers the estate itself.”

“It will be seen from what has been said that

our Code definition of alimony adds little, if

anything, to the meaning of or the right to

alimony as recognized under the common

law.” p. 904.

The Supreme Court of Georgia in Lloyd v. Lloyd, cited

above, concluded that in a proper case, and in the

sound discretion of the state court judge, the Superior

Court may award the use of the husband's property,

such as the use of the home or household goods, but no

award of temporary alimony may be made to totally

divest the husband of title. ;

Petitioner posits the following to Question 2.

Respondents’ legal arguments were grounded upon

cases totally distinguished on their facts by the

Petitioner in response to the Motion to Dismiss filed

by Lamar H. Knight. The case on appeal is not the fact

situation found by the courts in Pierson v. Ray. 386

U.S. 547 (1967); Williams v. Sepe, 487 F.2d 913 (1973); or

Guedry v. Ford, 431 F.2d 660 (1970). Nor did the

Petitioner ever intend to plead or infer those distin-

guishable fact situations. The central document

presented by the Petitioner, the Petition for Divorce

with the Order of the Court signed by Lamar H. Knight

are proof that Petitioner’s case is distinguishable.

In Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18

L.Ed.2d 288 (1967), the plaintiffs were arrested by

municipal police officers on charges of violating a

state breach-of-peace statute while attempting to use

the segregated facilities of an interstate bus terminal.

They were convicted on the charges when brought

before a municipal police justice. On appeal to the

County Court, one plaintiff was acquitted; the charges

against the others were dropped. In an action in U. S.

District Court under 42 U.S.C. Section 1983, the plain-

tiffs sought money damages against the municipal

police justice and the police officers. The jury return-

ed a verdict for the defendants and the plaintiffs

appealed. The Court of Appeals for the Fifth Circuit

held that the judge was immune under 42 U.S.C. Sec-

tion 1983. The U. S. Supreme Court, in reviewing the

record below, stated:

“The record is barren of any proofor specific

allegation that Judge Spencer played any role

in these arrests and convictions other than to

adjudge petitioners guilty when their cases

came before his court.”

The key concepts here are (1) in personam jurisdic-

tion (by arrest) of the parties before the court existed;

and (2) the disposition of the matter at hand; namely,

the adjudication of the guilt or innocence of the parties

could be properly upheld because the proceeding was

one for breach of the peace. The “due process” re-

quirements of notice and opportunity to be heard were

fulfilled. Relating these concepts to the case before

this Court, we find (1) a lack of in personam or in rem

jurisdiction of the corporation, Style Crest, before

Judge Knight's court; and (2) the disposition of the

matter at hand; namely, the transfer of possession and

control of the Georgia corporation could not properly

be maintained because the proceeding was not one for

a declaration of respective rights in the corporation,

but one for divorce between parties who did not repre-

sent the entire interests in the corporation. The “due

process” requirement of notice and opportunity to be

heard by all interest holders was not fulfilled.

Pierson v. Ray, supra, does not deal with a specific

allegation that subject matter jurisdiction was lack-

ing before the municipal police justice. Pleasant

Richard Tally v. William P. Johnson, et. al. does

specifically allege lack of subject matter jurisdiction.

The deprivation of this Plaintiff's civil rights was

proximately caused by this null and void disposition

of the corporate entity, Style Crest Southeast Co., Inc.

In Williams v. Sepe, 487 F.2d 913 (5th Cir. 1973),

plaintiff brought a civil rights action against a judge

who attempted to investigate a report that the plaintiff

had misrepresented himself as the judge’s law clerk

without giving the plaintiff written notice of the crim-

inal contempt charge as required by the Florida Code

of criminal procedure. The court held that “the defects

in the procedure employed (emphasis our own) will

not support a conclusion that there was a clear

absence of all jurisdiction”. The reason this conclu-

sion is sound is because the plaintiff in Williams v.

Sepe was personally before Judge Sepe and

procedural irregularities do not rise to the standard of

clear absence when irregular in personam jurisdic-

tion exists. Plaintiff maintains that he has alleged a

lack of all jurisdiction, a failure of any procedure be-

ing employed, in regard to Style Crest by the Defen-

dant, Lamar H. Knight.

In Guedry v. Ford, 431 F.2d 660 (5th Cir. 1970), plain-

tiff filed a civil rights action against a District At-

torney and a city court judge who had charged, tried,

convicted and sentenced him unfairly on a charge of

making harassing telephone calls. The gist of the suit

by the plaintiff was a charge of conspiracy to deprive

civil rights. The court held that “[T]he subject matter

of the charges against the plaintiff, Allen T. Guedry,

Jr., fall within the jurisdiction and purview ofthe City

Court of Hammon (presided over by the defendant

judge, Ford)”. In personam jurisdiction of Guedry ex-

isted before Judge Ford and Guedry was tried on a

charge spelled out in the indictment, affording notice

and opportunity to defend. Based upon the court’s find-

Sec

ing that the only complaint of the plaintiff in Guedry

was that he did not get a fair trial, the civil rights ac-

tion was dismissed. Again, this case is not on point

with the case pleaded by this Petitioner. The corpora-

tion, Style Crest, was not sued or indicted, tried or con-

victed. Neither party attempted to divorce the cor-

poration, but divorce each other.

In Cross v. Byrum, 348 F.Supp. 196 (1972), the Dis-

trict Court for the Southern District of Florida refused

to grant a motion to dismiss by a defendant justice of

the peace who, relying on judicial immunity proffered

to the court that Guedry v. Ford, supra, required dis-

missal. The enlightened Florida judge realized, under

Conley v. Gibson, 355 U.S. 41 (1957), that some factual

situation might be proven where the facts in Guedry

might notbeon point andcorrectly declined to dismiss

on the “bare bones pleadings”, since to do so had a

high mortality rate and violates the most fundamental

rule of federal practice as enunciated in Cook &

Nichols, Inc. v. Plimsoll Club, supra.

The simple fact distinguishing Pierson v. Ray,

Williams v. Sepe, Guedry v. Ford, Hill v. McClellan,

and Dotlich v. Kane, the latter two cases distin-

guished on their facts at (R.-181, 182, 183 and 186), is

that before the state court judge, making the order of

the court statutorily valid, were the only two parties

necessary by in personam jurisdiction through

process required for the disposition of the subject

matter of the order.

In Osbekoff v. Mallory, 188 N.W.2d 294 (lowa 1971),

annotated in 64 ALR 3d 1242, atown mayor, acting asa

magistrate of a mayor’s court, was held not immune

from liability for abuse of process to collect a civil

debt and by delivering the plaintiff's automobile to the

dealer-creditor without plaintiff's consent. The Court

reversing judgment of dismissal of the action in the

lower court as barred by the doctrine of judicial im-

munity noted that the plaintiff had not voluntarily

submitted himself to the jurisdiction of the mayor's

court to deal with his property. The Court stated that

his mere presence in the mayor's court in answer to

the criminal charge against him had not given the

mayor, acting as a magistrate, jurisdiction in any

proceeding to hear and determine the plaintiff's rights

in his automobile, since no matter had been pending in

the mayor’s court involving the plaintiff's property

rights in the automobile and no process had been is-

sued by the mayor’s court justifying seizure of the

automobile by the court. The Court in discussing the

doctrine of judicial immunity stated that it extended to

courts of limited jurisdiction and further stated that

when a magistrate acts wholly without jurisdiction,

civil liability attached for his malicious abuse of state

process under the pretense of acting in his official

capacity. Thus, the Court concluded that the lower

court erred in dismissing the action for it appeared

that the plaintiff had not failed to state a claim for

relief under any set of facts which could be proven.

The facts are on point. Pleasant Richard Tally had

not voluntarily submitted himself to the jurisdiction

of Judge Knight’s court to deal with his shareholder

interest in Style Crest or his right to earn a living

secured by this ownership. His mere presence before

Judge Knight did not cure the pretense of authority to

act. No matter involving Style Crest was then pend-

ing and no process issued against Style Crest. Yet

Defendant Lamar H. Knight signed over possession

and contro! of Style Crest, for which action alone he is

amenable to suit in this Court under 42 U.S.C. Section

1983 because he deprived this Petitioner of the right to

earn a living.

The distinction between “in excess of jurisdiction”,

Pierson v. Ray, supra, and “in the clear absence of

jurisdiction”, Pleasant Richard Tally v. William P.

Johnson, et. al. may be demonstrated by the following

examples using the order of Lamar H. Knight (R.-166).

It is hereby ordered, considered, and adjudged that:

1) Pleasant Richard Tally sell his shares of

stock in Style Crest and pay the money

therefrom to Frances White Tally as alimony

this is clearly within his jurisdiction and

authorized by Ga. Code Ann. 30-203.

2) Pleasant Richard Tally transfer the

voting rights to his shares of stock in Style

Crest to Frances White Tally —

this is clearly within his jurisdiction since

use of the husband’s property, without total

divestiture of title is not in violation of Lloyd

v. Lloyd, supra.

3) Pleasant Richard Tally’s shares of stock

in Style Crest are transferred to Frances White

Tally —

this is clearly in excess of jurisdiction since

Ga. Code Ann. 30-203, as interpreted by the

Supreme Court of Georgia in Lloyd v. Lloyd,

would not authorize the total divestiture of ti-

tle to the husband’s property.

4) That temporary possession and control of

Style Crest is hereby awarded to Frances

White Tally —

this is clearly in the absence of subject

matter jurisdiction since Ga. Code Ann. 30-

203, 22-1315, 22-1316, 22-1317 and following

would not authorize the transfer; and in per-

sonam jurisdiction and in rem jurisdiction

were clearly non-existent because the cor-

poration was a necessary party.

Petitioner is entitled to treat all the allegations of the

claim for relief and inferences therefrom as facts

which could have been proven upon trial of the matter

and introduction of competent evidence had not the

Petitioner been precluded from such opportunity by

the District Court in error. With this in mind, counsels

for Petitioner will now demonstrate why, if the above

distinctions between “in excess of jurisdiction” and

“in the clear absence of jurisdiction” were not legally

true, the following absurdity would be constitu-

tionally possible and a logical extension of the order

of Lamar H. Knight:

Let us suppose that Henry Ford, III, who owned 1,000

shares of Ford Motor Co., now a Georgia corporation,

were sued by his spouse, who owned 1,000 shares of

Ford Motor Co. in Superior Court for the Coweta

Judicial District. Both parties are residents of

Georgia, living in Temple, Ga., and served with

process. Would the Superior Court of Georgia have

jurisdictional power to order the transfer of posses-

sion and control of Ford Motor Co. to the spouse? What

of the shareholder interests of the millions of Ford

Motor Co. stockholders who were not represented in

the divorce litigation? Further, would the Superior

Court of Georgia be able to order such transfer and

effectuate such transfer by verbal restraint (injunc-

tion) to the effect that if Henry Ford, III, went back to

his office on Monday morning and attempted to func-

tion as Chairman of the Board of Ford Motor Co.,

Henry would risk being thrown in jail in Carrollton

for attempting to earn a living?

Such aresult is “monstrous”. Gregoire v. Biddle, 177

F.2d 579 at 581 (1949).

Petitioner posits the following to Question 3.

If the U.S. District Court for the Northern District of

Georgia’s reading of the dictum to the case at bar in

Pierson v. Ray, supra, required an appeal by this

plaintiff to the Supreme Court of Georgia, which legal

reasoning was affirmed without opinion by the panel,

why, then, didn’t U.S. District Judge Atkins, in the

Southern District of Florida, within the Fifth U.S. Cir-

cuit, dismiss the 42 U.S.C. section 1983 civil action

against two justices of the peace in Cross v. Byrum,

348 F. Supp. 196 (1972)? ‘“‘This appears to leave open

the possibility of some circumstances where immuni-

ty would notapply.”’ p. 198, J. Atkins. Indeed, posits the

Petitioner, where a state court judge, sitting in a

domestic relations suit, with no statutory powers over

Georgia corporations, with no jurisdiction by civil

process attaching to the Georgia corporation, and his

“want of authority being necessarily known to the

judge” (Mr. Justice Field, Bradley v. Fisher, supra, ) or-

ders disposition of Stylecrest, not husband’s or Plea-

sant Richard Tally’s share holdings in Style Crest

Southeast Co., Inc., the Georgia corporation, but Style

Crest. Doesn't the Petitioner merit the holding of

Conley v. Gibson, 355 U.S. 41 (1957)?

The amended complaint sought to answer the ques-

tion: What is meant by the term subject matter?

“Thus, if a probate court invested only with

authority over wills and the settlement of es-

tates of deceased persons, should proceed to

try parties for public offenses, jurisdiction

over the subject of the offenses being entirely

wanting in the court, and this being neces-

sarily known to its judge, his commission

would afford no protection to him in the exer-

cise of usurped authority.” Bradley v. Fisher,

80 U.S. 335, 20 L.Ed. 646 (1871)

The panel’s decision to affirm the District Court’s

legal reasoning translates the standard enunciated in

Bradley v. Fisher, supra, to the following application:

Thus, if a probate court invested only with

authority over wills and the settlement of es-

tates of deceased persons, should transfer an

entire corporation, jurisdiction over the sub-

ject of corporations being entirely wanting in

court, and this being necessarily known to its

judge, nevertheless, a panel of the Fifth Cir-

cuit will say that’s alright because there exists

a probate statute under which estates of de-

ceased persons may be settled by admission of

wills to probate.

Under the panel’s application of Bradley v. Fisher to

the facts of Petitioner’s Amended Complaint, Pleasant

Richard Tally should count himself lucky that Lamar

H. Knight didn’t order him taken out and shot, under

authority that it was only a divorce suit and the tem-

porary alimony statute covers anything done to the

husband under the guise of divorce. If he had, the “life”

interest protected by 42 U.S.C. 1983 would also have

been infringed. But the Fifth Circuit wouldn't have

noticed.

Under the substantive law of the State of Georgia, as

mandated by Erie R. Co. v. Tompkins, supra, the

proper formulation, according to the standard laid

down in Bradley v. Fisher, supra, should have been by

the panel as follows:

“Thus if a domestic relations court, vested

only with authority over divorces, should pro-

ceed to try a party’s natural and inherent right

to earn a living and transfer a state corpora-

tion, without due process of law, jurisdiction

over the subject of the corporation being en-

tirely wanting in the court, and this being

necessarily known to its judge because no

state statute exists conferring jurisdiction

over the subject of the corporation — ‘without

jurisdiction’ says the Supreme Court of Geor-

gia — his commission would afford him no

protection in the exercise of the usurped

authority.”

Petitioner posits the following to Question 4.

“The fundamental tenets of tort law have applica-

tion in cases brought under 42 U.S.C. section 1983, and

claims under that statute are to be viewed against the

background of tort liability which makes a man

responsible for the natural consequences of his acts.”

Ingram v. Dunn, 383 F.Supp. 1043 (D.C. Ga.), affirmed

514 F.2d 1070 (5th Cir. 1974). Petitioner has found no ex-

ception to that rule of law. The panel's decision is con-

trary to the purpose of extending immunity to state

court judges for their natural consequences of their

acts and the Fifth Circuit’s holding, as affirmed in

Ingram v. Dunn, supra, in regard to 42 U.S.C. section

1983 civil actions. By operation of Conley v. Gibson,

supra, it is afact that the Respondent Lamar H. Knight

on September 16, 1969, in his own handwriting,

transferred possession and control of an entire

Georgia corporation and terminated by injunction,

from the bench, the Petitioner's right to manufacture

and sell early American furniture and wood items. As

stated above, the panel’s decision, affirmance without

opinion of the U.S. District court, has not afforded

Petitioner the benefit of every possible inference of the

amended complaint, under Rule 12(b)(6), as required

by Cook & Nichol, Inc. v. Plimsoli Club, 451 F.2d 505

(Sth Cir. 1971). Petitioner maintains ihat affirmance

under sucii conditions is legal error.

And the panel’s sub silentio overruling of the hoid-

ing of Ingram v. Dunn, 383 F.Supp. 1043 (D.C. Ga.), af-

firmed 514 F.2d 1070 (5th Cir. 1974), conjures up in the

Petitioner that perhaps the entire Fifth Circuit Court

should re-read the amended complaint with the

following in mind from Mr. Justice Douglas:

“There is more than meets the eye here.

Employability is the greatest asset most peo-

ple have... . discharge may be the badge that

bars. ..otheremployment. The shadow ofthat

discharge is cast over the area where private

employment may be available. And ... in

many cases, the ultimate absolution never

catches up with the stigma... .” (February 19,

1974, in Murray v. GSA).

Thirteen years of hard work by Appellant to build up

the furniture manufacturing corporation, which

sustained thirty-eight families in Temple, Ga., went

up in smoke by order of Lamar H. Knight. That in-

famous order reeked more havoc in the eight years of

deprivation which followed than the fire which burned

the factory to the ground in 1958.

Petitioner posits the following to Questions 6

and 7.

By affirmance without opinion, under Local Rule 21,

to the effect that “no error of law appears”, the panel

adopted the following legal reasoning of the U.S. Dis-

trict Court:

“plaintiff's remedy, assuming error on the part

of Judge Knight, was an appeal of the order,

not a civil rights action against the judge.”

(R.-345.)

(Order of U.S. District Judge Moye, dated June

28, 1977.)

From atime whereof the memory of man runneth not

to the contrary, it has been settled that a civil rights ac-

tion in federal court under 42 U.S.C. §1983 has been

held to be free of the requirement that state judicial or

administrative remedies must first be exhausted.

Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281

(1939); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5

L.Ed.2d 492 (1961); McNeese v. Board of Education, 373

U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963).

Aside from the well pleaded and fully documented

factual impossibility of perfecting an appeal through

the deliberate gross negligence and callous in-

difference of his attorney in the state action, the Defen-

dant Aubrey W. Gilbert, Pleasant Richard Tally was

not required to exhaust state remedies before institu-

tion of acivil rights action under 42 U.S.C. section 1983

and the panel is in legal error to believe this is the state

of the constitutional] law to date.

The U.S. District Court believed such was mandated

by its reading of the dictum to the case at bar in Pier-

son v. Ray, supra. As discussed below, the facts in

Pierson are not the facts of the amended complaint and

“the record is not barren of any proof or specific

allegation” that Judge Knight merely decided that

grounds for legal separation appeared and he so or-

dered. The facts found by the trier of fact in Pierson v.

Ray were (1) that in personam jurisdiction (by arrest)

of the parties before the court existed; and (2) the dis-

position of the matter at hand; namely the adjudica-

tion of the guilt or innocence of the parties was proper

because the proceedings were for breach of the peace

by the parties before the Court. In Pleasant Richard

Tally v. William P. Johnson, et. al., the facts of the

amended complaint are (1) that in personam and in

rem jurisdiction of the Georgia corporation, Style

Crest, before Judge Knight was lacking because all the

shareholders of the Georgia corporation, meaning

Homer Williams, owning 900 shares, were not sued for

divorce by the Defendant William P. Johnson (para. 1

Complaint and (2) the disposition of the matter at

hand; namely a decree of legal separation in a

domestic relations suit could not include the non-

judicial act of transferring possession and control of

an entire Georgia corporation owned by more parties

than the husband and wife who alone were before

Judge Knight’s state court. And further, the order of a

domestic relations court could not include the en-

joining of the right to practice any of the common oc-

cupations of life, including the occupation of sales-

man and furniture manufacturer. Therefore, the U.S.

Supreme Court’s decision in Pierson v. Ray, supra,

equates to the legal theory of “in excess of juris-

diction”, enunciated in 46 Am Jur 2d, Judges, Sections

72-84, giving rise to judicial immunity for Judge

Spencer, so that any dictum to the case at bar to the

effect that the plaintiffs in Pierson would have to seek

redress through a state appeal court was premised on

the trier of fact’s finding the above jurisdictional

elements present. However, dictum to the case at bar

in a case standing for “in excess of jurisdiction”, is of

no significance in a federal civil rights action under 42

U.S.C. section 1983, when the legal theory, “in the clear

absence of jurisdiction’’, is well pleaded factually. In

such a case, the rule in Monroe v. Pape, 365 U.S. 167

(1961) applies:

‘It is no answer that the state has alaw which if

enforced would give relief. The federal remedy

is supplementary to the state remedy, and the

latter need not be first sought and refused

before the federal one is invoked.”

Monroe v. Pape was decided in 1961; Pierson v. Ray

was decided in 1967. If the decisions of the US.

Supreme Court are mandated to all the Courts of

Appeals, why would the Sixth U.S. Circuit Court of

Appeals, sister circuit to the fifth, adopt verbatim the

rule in Monroe over Pierson in a 42 U.S.C. section 1983

civil action decided in 1972? See Lucarell v. McNair,

453 F.2d 836 (6th Cir. 1972).

Under Lucarell, supra, Petitioner’s remedy con-

tinues to remain a civil rights action against the

judge. Cross v. Byrum, 348 F.Supp. 196 (S.D. Florida

1972); Wade v. Bethesda Hospital, 356 F.Supp. 380

(1973); Azar v. Conley, 456 F.2d 1382 (1972); Lynch v.

Johnson, 420 F.2d 818 (1970).

“The Federal Goverrment cannot serve a

writ of mandamus upon State Executives, or

upon State Courts to compel them to observe

and protect the rights, privileges, and im-

munities of citizens. Hence, this bill throws

open the doors of the United States courts to

those whose rights under the Constitution are

denied or impaired.”

Legislative History of the Civil Rights Acts, The Con-

gressional Globe, April 1, 1871, Mr. Lowe, p. 376.

The Fifth Circuit and the District Court by dismissing

the amended complaint which pleaded in the clear ab-

sence of jurisdiction have attempted to close the court-

house doors on Petitioner's rights. This Court should

continue to see that those doors remain open and

reverse the District Court for the Northern District of

Georgia.

“I see nothing in the provisions of this bill to

alarm the innocent. The law is a terror only to

evil-doers. It is in harmony with the fun-

damental law —”.

Legislative History of the Civil Rights Acts, The Con-

gressional Globe, April 1, 1871, Mr. Lowe, p. 376.

Petitioner posits the following to Question 8.

The amended complaint sought the answer fo the

question: What is meant by the term subject matter?

As stated above, Pleasant Richard Tally had not

voluntarily submitted himself to the jurisdiction of

Judge Knight’s court to deal with his shareholder in-

terest in Style Crest or his right to earn a living

secured by this ownership. His mere presence before

Judge Knight did not cure the pretense of authority to

act. There was a total failure of any procedure being

employed; that is, civil process, to bring the Georgia

corporation, Style Crest Southeast Co., Inc. before the

state court as subject matter for its disposition by the

state court judge. No matter involving Style Crest was

then pending before the state court. Osbekoff v.

Mallory, 188 N.W. 2d 294 (Iowa 1971), annotated at 64

ALR 3d. 1242. Yet Lamar H. Knight signed over

possession and control of Style Crest in the Order

decreeing legal separation. The law is a body of rules

recognized and enforced in courthouses. The Order

decreeing legal separation was enforceable by con-

tempt. The Order transferring Style Crest was the law

enforceable by Lamar H. Knight and he made that en-

forceability perfectly clear to the deprivation of the

fundamental rights alleged violated.

In the clear absence of civil process “suing from a

state court attaching the Georgia corporation, Style

Crest, by in personam jurisdiction of all the corporate

shareholders or by in rem jurisdiction of some cor-

porate asset, the land, buildings, machinery, equip-

ment, inventory, or personalty, the exercise of a sup-

posed grant of authority to act contra Lloyd v. Lloyd,

supra, that is; Ga. Code Ann. 30-203, the temporary

alimony statute, without the power; that is, civil

process, to actis acomplete judicial nullity, a void act,

a void disposition, and usurps powers granted the cor-

poration by Georgia law and strips the state court

judge of any common law immunity when the exer-

cise of usurped authority divests the fundamental

right to earn a living secured by ownership of the busi-

ness out of which the living was pursued. The grantof

authority to act is not the same as the exercise of such

grant in the total absence of process to legitimately

effect such grant and does not vest jurisdiction over

the property ordered disposed of.

Yet the District Court so adjudged that such a result

is constitutionally possible. Then what, asks the

Petitioner, is the purpose of issuing any civil state

court process to bring the power to act together with

the grant of authority to act upon a person or his

“property” rights?

CONCLUSION

Counsel for Respondent, Lamar H. Knight, states at

p. 4 of his Appeal Brief:

“Superior Judge Knight was acting within his

jurisdiction ... in granting temporary

alimony from plaintiff's (Appellant’s) estate.”’

Forget for a moment that the Supreme Court of Geor-

gia in Lloyd v. Lloyd prohibited what counsel proffers.

Petitioner would like to ask counsel for Respondent

Knight just how he perceives the Georgiacorporation,

Style Crest Southeast Co., Inc., owned by Pleasant

Richard Tally, Frances White Tally and Homer

Williams to have been solely part of the estate of Plea-

sant Richard Tally? The Georgia corporation just

wasn't part of any ofits shareholders’ estates. Nocase,

no statute, no Georgia constitutional provision has

been cited by counsel for the Respondent which would

authorize the transfer of possession and control of a

Georgia corporation owned by more parties than the

two parties before Lamar H. Knight in the state

proceeding. Counsel for the Petitioner must conclude

that no such precedent or grant of authority exists.

And because none exists, Wade v. Bethesda Hospital,

supra, is directly on point. Contrast counsel for

Respondent's last quoted statement that Judge Knight

was “acting within his jurisdiction” with the follow-

ing statement from page 6 of his Brief:

“Judge Knight might have exceeded his juris-

diction in making an improper award of prop-

erty under Georgia’s Temporary Alimony

statute.”

Well, which is it? Within or exceeding? The answer is

simply: in the clear absence of any jurisdiction or

authority, and without due process as stated correctly

on page 2 of the Brief of Respondent Lamar H. Knight:

“Plaintiff alleges these actions violated his

constitutional due process and property

rights (R.-55). Plaintiff further alleges that

Judge Knight did not have jurisdictional

authority to transfer ‘possession and control’

of the corporation to the plaintiff's wife; and

therefore, his action was ‘null and void’ and

‘completely stripped the defendant, Judge

Lamar H. Knight of any judicial immunity’

(R-56).”

You cannot exceed jurisdiction, if jurisdiction never

existed!

In Wade v. Bethesda Hospital, supra, the U.S. Dis-

trict Court could find no statute in Ohio authorizing

the abortion forced on the female plaintiff. No statute

in Georgia exists to authorize the “abortion” of

Petitioner's fundamental right to earn a living, forced

on Pleasant Richard Tally in the name of state action

and under penalty of state imprisonment!

The female plaintiff in Ohio was found entitled to

recover damages under 42 U.S.C. §1983; Pleasant

Richard Tally is equally entitled to recover under 42

U.S.C. § 1983.

According to counsel for Respondent Lamar H.

Knight: “Plaintiff mistakenly confuses the test of

judicial immunity.” “Thus, the issue in this case is

whether the Superior Court had jurisdiction over the

divorce action in which the alleged orders were en-

tered ..., not whether the Superior Court had juris-

diction over the corporation. .. which was allegedly

transferred .. . nor whether the Superior Court prop-

erly restrained the plaintiff.” See page 4 of the Briefof

Lamar H. Knight. Petitioner responds that the follow-

ing illustration, directly on all fours with the instant

case, reveals he is not mistakenly confused:

“Thus, if a probate court, invested only with

authority over wills and the settlement of es-

tates of deceased persons, should proceed to

try parties for public offenses, jurisdiction

over the subject of the offenses being entirely

wanting in the court, and this being neces-

sarily known to its judge, his commission

would afford no protection to him in the exer-

cise of the usurped authority.” Opinion of Mr.

Justice Field, Bradley v. Fisher, 13 Wall (U.S.)

335, 352, 20 L.Ed. 646 (1871).

The panel’s decision to affirm the U.S. District Court

without opinion translates the standard enunciated in

Bradley v. Fisher, supra, to the following application:

Thus, if a probate court invested only with

authority over wills and the settlement of es-

tates of deceased persons, should transfer an

entire corporation, jurisdiction over the sub-

ject of corporations being entirely wanting in

court, and this being necessarily known to its

judge, nevertheless, a panel of the Fifth Cir-

cuit willsay that’s alright because there exists

a probate statute under which estates of de-

ceased persons may be settled by admission of

wills to probate.

Under the substantive law of the State of Georgia, as

mandated by Erie R. Co. v. Tompkins, supra, the prop-

er formulation, according to the standard laid down in

Bradley v. Fisher, supra, should have been by the pan-

el as follows:

act done a judicial act, within his juris-

diction? Of this he is not the judge. Ifit was not

and he acted without jurisdiction he has

ceased to be a judge.” Randall v. Brigham, 74

U.S. 532, 19 L.Ed. 285 (1868).

Respectfully submitted,

Richard A. Straser

Carole Suzzanne Holman

Co-Counsels for

Appellant-Petitioner

“Thus if a domestic relations court, vested

only with authority over divorces, should pro-

ceed to try a party’s natural and inherent right

to earn a living and transfer a state corpora-

tion, without due process of law, jurisdiction

over the subject of the corporation being en-

tirely wanting in the court, and this being

necessarily known to its judge because no

State statute exists conferring jurisdiction

over the subject of the corporation — ‘without

jurisdiction’ says the Supreme Court of Geor-

gia — his commission would afford him no

protection in the exercise of the usurped

authority.”

“If the alleged trespasser be a judge of a

court of record, the only question is: Was the

-Bushrod Corbin Washington

Associate Counsel

for Petitioner

CERTIFICATE OF SERVICE

I, the undersigned counsel for Pleasant Richard Tal-

ly, do hereby certify that a copy of the foregoing Peti-

tion to the Supreme Court of the United States for Writ

of Certiorari was mailed by first class mail to the

counsels for the respective Respondents with proper

postage affixed, this the ___ day of March, 1978.

Richard A. Straser

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 77-2339

Summary Calendar*

PLEASANT RICHARD TALLY,

a/k/a Dick Tally,

Plaintiff-Appellant,

versus

WILLIAM P. JOHNSON, ET AL.,

Defendants-Appellees.

Appeal from the United States District Court for the

Northern District of Georgia

(December 8, 1977)

Before GOLDBERG, CLARK and FAY, Circuit Judges

PER CURIAM: AFFIRMED. See Local Rule 21.!

* Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty

Company of New York, et al., 5 Cir. 1970, 431 F.2d 409, Part I

1 See NLRB v. Amalgamated Clothing Workers of America, 5

Cir. 1970, 430 F.2d 966.

APPENDIX B

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

“ Office of the Clerk

January 6, 1978

TO ALL PARTIES LISTED BELOW:

NO. 77-2339 — Pleasant Richard Tally, etc.

versus

William P. Johnson, et al

Dear Counsel:

This is to advise that an order has this day been

entered denying the petition for rehearing, and no

member of the panel nor Judge in regular active serv-

ice on the Court having requested that the Court be

polled on rehearing en banc (Rule 35, Federal Rules of

Appellate Procedure; Local Fifth Circuit Rule 12) the

petition for rehearing en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH,

Clerk

/s/ R. ADELINE BARNES

Deputy Clerk

Mr. Richard A. Straser

Miss Carole S. Holman

Mr. Sam D. Price

Mr. J. Eugene Beckham, Jr.

Mr. David H. Tisinger

Mr. Thomas E. Greer

Mr. Charles L. Goodson

Mr. Don A. Langham

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

PLEASANT RICHARD TALLY a/k/a DICK TALLY

versus C.A. No. C77-359-A

WILLIAM P. JOHNSON, HOMER WILLIAMS,

AUBREY W. GILBERT and LAMAR H. KNIGHT

JUDGMENT

This action came on for consideration before the

Court, Honorable CHARLES A. MOYE, JR., United

States District Judge, presiding, and the issues having

been duly considered and a decision having been duly

rendered,

It is Ordered and Adjudged the plaintiff, PLEA-

SANT RICHARD TALLY a/k/a DICK TALLY, take

nothing, that the action be dismissed and that the

defendants’ WILLIAM P. JOHNSON, HOMER

WILLIAMS, AUBREY W. GILBERT AND LAMAR H.

KNIGHT, recover their costs of action.

Dated at Atlanta, Georgia, this 3rd day of June, 1977.

BEN H. CARTER

Clerk of Court

BY: /s/ DORIS WYNEM

Deputy Clerk

Filed and entered in

Clerk's Office

this 3rd day of June, 1977

ORDER

(Number and Title Omitted)

This is an action for violation of plaintiff's civil

rights under 42 U.S.C. § 1983. The case is presently

before the Court on the motions of defendants William

P. Johnson, Aubrey W. Gilbert, and Lamar H. Knight to

dismiss the complaint, on defendant Homer

Williams's motion for summary judgment, on defen-

dants Johnson and Gilbert’s motion for change of

venue, and on the plaintiff's motion for contempt as to

defendant Williams.

Plaintiff Pleasant Richard Tally alleges that in 1969

_he and his former wife, Frances W. Tally, each owned

1,000 shares of common stock of Style Crest South-

east Co., Inc. (Style Crest) shares, and that defendant

Homer Williams owned 900 shares of said stock.

Frances Tally filed for divorce in the Superior Court of

Coweta County, Georgia, on August 31, 1969. On

September 4, 1969, plaintiff was allegedly terminated

from his job as salesman for Style Crest by defendant

William P. Johnson, Frances Tally’s attorney. In the

divorce proceeding held on September 16, 1969, the

defendant Superior Court judge, Lamar H. Knight,

awarded plaintiff's interest in Style Crest to Frances

Tally and ordered the plaintiff to refrain from entering

the premises of the corporation. Plaintiff claims that

all defendants conspired in the divorce proceeding to

deprive him of the constitutional right to earn a living.

The Court finds that the motion to dismiss of defen-

dants Knight, Gilbert, and Johnson must be granted.

Despite plaintiffs claims to the contrary, it is clear

that Judge Knight had jurisdiction over the divorce

proceedings in question and was empowered to make

a disposition of plaintiff's share holdings in Style

Crest under Ga. Code Ann. § 30-203. Defendant Knight

is therefore immune to suit under section 1983. Pier-

son v. Ray, 386 U.S. 547 (1967); Bradley v. Fisher, 80

U.S. (13 Wall.) 335 (1871); Wiliiams v. Sepe, 487 F.2d 913

(5th Cir. 1973).

Defendants Gilbert and Johnson acted as the at-

torneys for the respective parties in the Tally divorce

action in 1969. Said defendants were thus participat-

ing in private state court litigation, were not acting

under color of state law, and cannot be held liable un-

der 42 U.S.C. § 1983. Hill v. McClellan, 490 F.2d 859 (5th

Cir. 1974). Plaintiff argues that the attorneys’ immuni-

ty is derivative of the judge’s and cannot be sustained

where the judge acted outside of his jurisdiction. In

view of the Court’s finding that the judge acted within

his jurisdiction, however, this claim is not

meritorious. Accordingly, the motions to dismiss of

defendants Knight, Johnson, and Gilbert are hereby

GRANTED.

Defendant Homer Williams files a motion for sum-

mary judgment asking that plaintiff's complaint be

dismissed for failure to state a claim upon which relief

can be granted. The motion is hereby construed as a

motion to dismiss. The motion is GRANTED. Defen-

dant Williams is a private person, not alleged to have

acted under color of state law, who purportedly con-

spired with defendants Knight, Johnson, and Gilbert

to deprive plaintiff ofhis civil rights. A private person

alleged to have conspired with persons entitled to im-

munity cannot be held to have acted under color of

state law. Hill v. McClellan, 490 F.2d 859, 860 (5th Civ.

1974); Guedry v. Ford, 431 F.2d 660, 664 (5th Cir. 1970).

Plaintiff therefore states no cause of action against

Homer Williams.

In view of the disposition of the above motions, the

motion for change of venue is moot. The plaintiff's mo-

tion for a finding that Homer Williams is in contempt

of Court is DENIED. The Court finds on the basis of Mr.

Williams's affidavit that he believed facts as repre-

sented by him in his first affidavit to be true.

The Court finds that plaintiff has failed to state a

cause of action against any of the defendants; and the

complaint is hereby ORDERED DISMISSED.

SO ORDERED, this 1 day of June, 1977.

/s/ CHARLES A. MOYE, JR.

UNITED STATES DISTRICT

JUDGE

(Filed: JUN. 3, 1977]

APPENDIX D

ORDER

(Number and Title Omitted)

This case is presently before the Court on the plain-

tiff’s motion to alter or amend the judgment and on the

plaintiff's motion to stay the judgment for costs pend-

ing appeal to the Fifth Circuit. The motion to alter or

amend is DENIED. The plaintiff's remedy, assuming

an error on the part of Judge Knight, was an appeal of

the order, not a civil rights action against the judge.

Pierson v. Ray, 386 U.S. 547 (1967).

The plaintiff's motion to stay the judgment for costs

pending appeal is hereby GRANTED.

SO ORDERED, this 28 day of June, 1977.

/s/ CHARLES A. MOYE, JR.

UNITED STATES DISTRICT

JUDGE

[Filed: JUN. 30, 1977]

APPENDIX E

CLAIM UPON WHICH PLAINTIFF SEEKS RELIEF

The Plaintiff, Pleasant Richard Tally, was a

shareholder owning i000 shares of common

stock, par value $1.00 per share of Style Crest

Southeast Co., Inc. (hereinafter referred to as

Style Crest) since incorporation of that company

on November 22, 1966. The other stockholders of

the close corporation were the Plaintiff's wife,

Frances Marie Tally (also known as Frances

White Tally) owning 1650 shares or a majority in-

terest of common stock, par value $1.00 per share,

and the Defendant Homer Williams, owning 900

shares of common stock par value $1.00 per share.

The Plaintiff was also an outside salesman for the

corporation, effectively producing over 90% of

the corporate accounts. Style Crest was a manu-

facturer ofearly American furniture, and subcon-

tractor for wood items for other furniture

manufacturing companies.

On or about May 23, 1969, the Plaintiff, Pleasant

Richard Tally, and his wife, Frances White Tally,

executed jointly and severally a deed to secure

debt resulting in an encumbrance on one home

owned by them jointly as a personal residence at

1684 Cecelia Drive, N.E., DeKalb County, Atlanta,

Georgia, which was not a corporate asset. The

deed to secure debt was executed in order to ob-

tain monies to pay the back taxes owed by the cor-

poration, Style Crest. -

3. Onor about August 29, 1969, Frances White Tally,

by her attorney, the Defendant, William P. John-

son, filed for divorce in Superior Court, Coweta

Judicial Circuit in Carroll County, Georgia,

before the Defendant, Judge Lamar H. Knight.

On or about September 4, 1969, the Defendant

William P. Johnson, summoned the Plaintiff, in

this action, Pleasant Richard Tally, to his law of-

fice in Carrollton, Georgia, where in the pres-

ence of Frances White Tally, he “fired” the Plain-

tiff shareholder from his corporation Style Crest.

Plaintiff, Pleasant Richard Tally, was not repre-

sented by legal counsel at this transaction.

On or about September 16, 1969, the hearing for

entry of an interlocutory decree of divorce was

heard before the Defendant Judge Lamar H.

Knight in Superior Court, Coweta Judicial Cir-

cuit in Carrollton County, Georgia. The Plaintiff

in this action, Pleasant Richard Tally, was, at this

hearing, represented by the Defendant Aubrey W.

Gilbert acting as his legal counsel. At this hear-

ing, actual fraudulent statements were made by

the Defendant William P. Johnson, to the Defen-

dant Lamar H. Knight to the effect that the Plain-

tiff, Pleasant Richard Tally owned no share-

holder interest in Style Crest, despite the fact that

the face of the petition for divorce drawn by the

Defendant William P. Johnson submitted to the

Defendant Lamar H. Knight recited the Plaintiff

Pleasant Richard Tally’s $1000.00 worth of stock

in Style Crest. The fraudulent statements were

disputed by the Plaintiff Pleasant Richard Tally

from the witness stand and the Defendant Aubrey

10a

W. Gilbert assured the Plaintiff, Pleasant Richard

Tally, that no disposition could be made of the

corporation or the Plaintiff's shareholder interest

in Style Crest.

The Defendant, Judge Lamar H. Knight under

color of state authority, in a state proceeding for

divorce, without subject matter jurisdiction of the

corporation, Style Crest, or of all the share-

holders thereof, and without notice or oppor-

tunity to be heard as to the respective civil rights

of the Plaintiff in this action, Pleasant Richard

Tally, as required by the substantive and

procedural due process provisions of the i4th

Amendment of the United States Constitution and

42 U.S.C. § 1983, did deliberately and uncon-

stitutionally transfer possession and control of

the entire interest in Style Crest to Frances White

Taliy, the plaintiff in the state proceeding for

divorce.

The Defendant, Judge Lamar H. Knight did

further, in open court, verbally, restrain the

Plaintiff in this action, Pleasant Richard Tally

from entering the premises of Style Crest, by

court order on pain of incarceration in effect lock-

ing the Plaintiff, Pleasant Richard Tally out of

Style Crest and thus depriving the Plaintiff of his

constitutionally protected property right — the

right to earn a living as a furniture salesman for

Style Crest — which was protected and secured by

the Plaintiffs ownership of 1000 shares of stock

in Style Crest. The Defendant, Aubrey W. Gilbert,

then representing the Plaintiff, Pleasant Richard

Tally, did not protest this deprivation by fraud of

lla

the constitutional right to earn a living and enjoy

ownership of stock in Style Crest, perpetrated by

the Defendant William P. Johnson and com-

pounded by the Defendant Judge Lamar H.

Knight.

The Plaintiff, Pleasant Richard Tally had no

opportunity to secure and produce evidence of his

ownership of stock, namely the stock certificate

evidencing his 1000 shareholder interest in Style

Crest. The Court had only subject matter juris-

diction of the parties for purposes of the pending

divorce proceeding, yet the Interlocutory decree

of divorce recited that possession and control of

Style Crest were transferred to Frances White

Tally. This action of the part of the Defendant

Judge Lamar H. Knight, effecting disposition of

Style Crest, its shareholders’ interests which

thereby deprived Plaintiff Pleasant Richard Tal-

ly of his right to earn a living should he attempt to

pursue his livelihood by returning to the

premises of Style Crest, under a present immi-

nent threat of confinement in a State jail for con-

tempt of Court rendered this aspect of the deci-

sion in the divorce proceeding a complete judicial

nullity. Such State action, being null and void,

completely stripped the Defendant, Judge Lamar

H. Knight of any judicial immunity.

On or about February 26, 1970, Frances White Tal-

ly, by her attorney, the Defendant William P.

Johnson, filed a civil action in the City Court of

Carrollton Georgia styled “Frances W. Tally v.

Glas-Foam Corporation, John R. Creighton, and

Leslie D. Igleheart’” Civil Action No. 3310. The

12a

suit alleged breach of contract for failure of Glas-

Foam Corporation to tender $65,000 after transfer

by Frances White Tally of her majority interest in

Style Crest. The face of the contract between

Frances White Tally and Glas-Foam Corporation,

executed October 7, 1969, recited the Plaintiff's,

Pleasant Richard Tally, shareholder interest, i.e.,

1000 shares of Style Crest.

On or about February 26, 1970, the United States

Internal Revenue Service sold the machinery,

buildings and land owned by Style Crest to pay

back taxes. The Defendant, Homer Williams,

Secretary-Treasurer of Style Crest in breach of

his fiduciary duty to Style Crest was the only

bidder, bidding $15,000 for all Style Crest assets

on behalf of Temple Manufacturing Company

whose corporate officers are the Defendants

William P. Johnson and Homer Williams.

On or about March 17, 1970, the final decree of

divorce between Frances White Tally and Plain-

tiff in this action, Pleasant Richard Tally was en-

tered by the Defendant Judge Lamar H. Knight in

the Superior Court in Carrollton, Georgia. No fur-

ther testimony was taken prior to entry of the

final decree of divorce; however, the Plaintiff,

Pleasant Richard Tally was induced to make an

increase in child support from $120.00 per month

awarded in the interlocutory decree to $150.00 per

month in the final decree. Such increase was

negotiated by Plaintiff's legal counsel in that ac-

tion for divorce, Defendant Aubrey W. Gilbert

with the Defendant William P. Johnson, legal

10.

13a

counsel for Frances White Tally in that action for

divorce, for and in consideration of a quitclaim

deed for three lots (real property) owned by the

corporation Style Crest, whose total assets had

been sold by the Internal Revenue Service to the

Defendants William P. Johnson and Homer

Williams, officers of Temple Manufacturing Co.

on February 26, 1970. The modification of the

child support provision was suggested by

William P. Johnson with intent to defraud the

Plaintiff in this action Pleasant Richard Tally, in

that the quitclaim deed could pass no interest to

Pleasant Richard Tally. The Defendant Judge

Lamar H. Knight made the modification a part of

the final decree of divorce.

On or about August 25, 1970, the quitclaim deed,

mentioned in the preceding paragraph, was

mailed by the Defendant Aubrey W. Gilbert to the

Plaintiff, Pleasant Richard Tally. When the Plain-

tiff, Pleasant Richard Tally went to record the

quitclaim deed at the Carroll County Courthouse

on August 31, 1970, he discovered that the con-

vey ance evidenced by the quitclaim deed was pre-

ceeded in the Grantee Index by recordation of a

conveyance from the Internal Revenue Service to

Temple Manufacturing Company whose officers

are the Defendants William P. Johnson and

Homer Williams, the I.R.S. conveyance being

recorded by them on August 24, 1970.

The Plaintiff, Pleasant Richard Tally, due to the

fraud perpetrated by the Defendants, under color

of state authority, was deprived ofhis civil rights

11.

12.

ida

under 42 U.S.C. § 1983 in violation of due process

of law guaranteed by the 14th Amendment to the

United States Constitution, and as a direct result

was unemployed from August 31, 1969 until

February 15, 1973 when he finally obtained work

with Bendix Corporation — not as a salesman.

The Plaintiff, Pleasant Richard Tally has never

been able to return to work as an outside

salesman of furniture.

The Plaintiff, Pleasant Richard Tally remains

obligated to this day to pay monthly installments

on the deed to secure debt (noted in paragraph 2

which had been executed to obtain monies to pay

back corporate taxes of Style Crest) ranging from

$118.00 to $93.04 per month.

The Plaintiff, Pleasant Richard Tally’s constitu-

tional right of “liberty’’ has been abridged. The

deprivation of the right to earn a iiving, plus the

stigma of having to state to subsequent prospec-

tive employers that he, Pleasant Richard Tally,

had been ‘“‘fired” from his own corporation, Style

Crest, equals the liberty inierest envisioned and

protectable under 42 U.S.C. § 1983.

WHEREFORE PLAINTIFF prays that this Court

grant the following relief:

(1) an accounting of the corporate assets of

Style Crest;

(2) payment of lost dividends of his share-

holder interest in Style Crest from the

(3)

(4)

(5)

(6)

(7)

15a

time that he was “‘fired’’, measured by the

net profit of Temple Manufacturing Com-

pany,

$700,000 in compensatory damages

(wages, commissions, salary, bonuses,

lost earnings, unpaid expenses, etc.) plus

be paid to him;

$60,000 in attorneys fees or reasonable at-

torney’s fees be paid to him;

punitive damages be assessed;

and any other legal or equitable relief

deemed by this Court to be just and ap-

propriate

that all damages and relief be assessed

against each and all defendants, jointly

and severally.

by Counsel for Plaintiff

Richard A. Straser

1320 Ft. Myer Drive

Suite 812

Arlington, Virginia 22209

Tel. # 703-557-9550

C. E. Allen

2781 Galahad Drive, N.E.

Atlanta, Georgia 30345

Tel. # 634-5934

16a

APPENDIX F

IN THE

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

PLEASANT RICHARD TALLY,

Plaintiff,

versus C.A. No. C-77-359A

WILLIAM P. JOHNSON, et al.,

Defendants.

NOTICE OF MOTION

TO:

RICHARD A. STRASER CHARLES L. GOODSON

1320 Ft. Myer Drive 11 Perry Street

Suite 812 Newnan, GA 30263

Arlington, VA 22209

C. EDWARD ALLEN TOMMY GREER

2781 Galahad Drive, N.E. 202 Tanner Street

Atlanta, GA 30345 P. O. Box 798

Carrollton, GA 30117

Please take notice that the defendant Judge Lamar

Knight has filed the attached Motion to Dismiss in this

matter. The Clerk is requested to submit the Motion

and accompanying brief to the Court in accordance

with the Local Rules.

17a

This 2ist day of April, 1977.

/s/ DON A. LANGHAM

DON A. LANGHAM

First Assistant Attorney

General

(Counsel for Defendant Judge

Lamar Knight)

PLEASE ADDRESS ALL

COMMUNICATIONS TO:

DON A. LANGHAM

First Assistant Attorney General

140 State Judicial Building

Atlanta, Georgia 30334

Telephone: (404) 656-3392

MOTION TO DISMISS

(Number and Title Omitted)

Defendant Superior Court Judge Lamar Knight

moves this Court pursuant to Rule 12(b) of the Yederal

Rules of Civil Procedure, to dismiss this action

against him on the grounds that:

Plaintiff has failed to state a cause of action against

this defendant;

18a

The doctrine of judicial immunity requires 4 dis-

missal; and

The statute of limitatioas for the alleged cause of ac-

tion has expired.

A brief in support of this motion is filed herewith.

Respect‘ully subraitted

ARTHUR K. BOLTON

Attorney Genera!

ROBERT S. STUBBS, II

Executive Assistant Attorney

General

/s/ DON A. LANGHAM

DON A. LANGHAM

First Assistant Attorney

General

PLEASE ADDRESS ALL

COMMUNICATIONS TO:

DON A. LANGHAM

First Assistant Attorney General

140 State Judicial Building

Atlanta, Georgia 30334

Telephone: (404) 656-3392

19a

BRIEF IN SUPPORT OF MOTION TO DISMISS

(Number and Title Omitted)

STATEMENT OF THE FACTS

According to the allegations in the complaint, the

plaintiff in this action was a defendant in a divorce ac-

tion brought in the Carroll County Superior Court in

1969 by his then spouse, Mrs. Frances White Tally. The

divorce action was heard by Superior Court Judge

Lamar Knight.

According to the allegations in paragraph 5 of the

instant complaint, on or about September 16, 1969,

Judge Knight held a hearing prior to the entry of an in-

terlocutory order in the divorce action. Paragraph 5 of

the complaint further states that as a result of the

September 16, 1969 hearing, Judge Knight caused the

transfer of certain personal property to the plaintiff's

wife, and issued an ora] order restraining the plaintiff

from entering the premises of a corporation which the

complaint alleges was owned primarily by the plain-

tiff and his wife. According to the complaint, these ac-

tions by Judge Knight “rendered this aspect of the

decision in the divorce proceeding a complete judicial]

nullity.”

Paragraph 5 of the complaint also contains the

somewhat astounding conclusion that this action

(presumably that referenced in the preceding

paragraph) “being null and void, completely stripped

the Defendant, Judge Lamar H. Knight, of any judicial]

immunity.”

20a

There is no other allegation in the complaint con-

cerning alleged activities of Judge Knight which

might be involved in this civil rights action which is

brought pursuant to 42 U.S.C. §1983.

II.

ARGUMENT AND CITATION OF AUTHORITY

A. Thecomplaint fails to state a cause of ac-

tion against Judge Knight and should be

dismissed under the doctrine of judicial

immunity.

The United States Supreme Court has ruled that a

judge may not be held personally liable for his judicial

actions while acting upon matters within the scope of

his jurisdiction, regardless of his personal intent, the

damage suffered by a litigant appearing before him,

and regardless of how erroneous his judgment may be.

This immunity is complete and absolute. Bradley v.

Fisher, 13 Wall (U.S.) 335, 20 L. Ed. 646 (1871); Guedry

v. Ford, 431 F.2d 660 (5th Cir. 1970); Williams v. Sepe,

487 F.2d 913 (5th Cir. 1973). This doctrine of judicial im-

munity is applicable to civil rights actions brought

pursuant to 42 U.S.C. §1983. Pierson v. Ray, 386 U.S.

547, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967).

As the United States Supreme Court said in Pierson

v. Ray, supra.:

“It is a judge’s duty to decide all cases within

his jurisdiction that are brought before him,

including controversial cases that allow the

most intense feelings in the litigants. His

2ia

errors may be corrected on appeal, but he

Should not have to fear that unsatisfied

litigants may hound him with litigation

charging malice orcorruption. Imposing such

a burden on judges would contribute not to

principled and fearless decision-making but

to intimidation.” 18 L.Ed.2d 288, 295

{Emphasis Added]

The case sub judice is a typical example of the evil

with which the United States Supreme Court ex-

pressed its concern in both Bradley, supra, and Pier-

son, supra. The plaintiff in this case is obviously un-

happy with the results of the divorce litigation which

took place some eight (8) years ago. How does he

react? He brings suit against his own attorney, his ex-

spouse’s attorney, and the judge who heard the case.

The judicial process would quickly breakdown if a

judge could not act in a forthright fearless manner in

making his judicial decisions.

It is a well settled rule of law in this country that as

long as a judge has jurisdiction over the person

appearing before him and over the subject matter of

the case then pending, he is entitled to absolute im-

munity concerning his decisions notwithstanding the

fact that a particular act, decision, outcome, or crim-

inal penalty, might exceed his jurisdiction. Randall v.

Brigham, 7 Wall (U.S.) 523, 19 L. Ed. 285 (1869); John-

son v. MacCoy, 278 F.2d 37 (9th Cir. 1960); Collins v.

Moore, 441 F.2d 550 (5th Cir. 1971). As the Fifth Circuit

said in Williams v. Sepe, supra.:

“, .. the test for the abrogation of judicial im-

munity is whether there is a clear absence of

22a

all jurisdiction over the subject matter (citing

Bradley v. Fisher, supra.). The policy under-

lying the doctrine requires that its application

not depend upon the determination of ‘nice

questions of jurisdiction.’ "’ 487 F.2d 913, 914

(5th Cir. 1973) [Emphasis in Original]

With that background in mind, a careful review of

the allegations in the plaintiff's complaint, as they

relate to Judge Knight, fail to disclose any allegations

which should cause this Court to pause for even a mo-

ment before dismissing Judge Knight from this action

under the doctrine of judicial immunity. As was point-

ed out in the Statement of Facts above, the only portion

in the complaint which could conceivably give rise to

any cause of action against Judge Knight is para-

graph 5. In that paragraph the plaintiff states that

Judge Knight conducted a hearing concerning an

interlocutory decree in a divorce proceeding. There is

no question but that a superior court judge in Georgia

has jurisdiction to adjudicate divorce actions. See

Georgia Constitution of 1945, Art. VI, Sec. IV, Par. I

(Ga. Code Ann. §2-3901). The statutes amplifying the

constitutional jurisdiction clearly grant the Superior

Court the authority to issve an order granting such

temporary alimony as the condition of the husband

and the facts of the case may justify. Ga. Code Ann.

§30-202. The statute further authorizes the judge to

consider the peculiar necessities of the wife and make

appropriate disposition of property. Ga. Code Ann.

§30-203. Thus, there can be absolutely no question but

that Judge Knight had jurisdiction over the divorce

action in the Superior Court of Carroll County and had

the authority to grant temporary disposition of the

property pending the final decree of divorce.

23a

The gravamen of plaintiff's allegations against

Judge Knight seem toevolve around an allegation that

the Judge caused the transfer of possession and con-

trol of a corporation owned by the plaintiff and his

spouse to the spouse in that order following the

September 16, 1969 hearing. If that is the case, and

even assuming arguendo that such an order went

beyond the scope of the Court’s jurisdiction (which

Judge Knight vigorously denies), it was at most a

Situation where a Judge exceeded his jurisdiction

rather than a situation where the conduct of the

proceeding was wholly beyond the jurisdiction of the

Court. Such a situation requires the application of

judicial immunity. Bradley v. Fisher, supra.; Collins

v. Moore, supra.

Plaintiff's second concern with respect to Judge

Knight's judicial activity at the September 16, 1969

hearing (which is also referenced in paragraph 5ofthe

complaint) is that Judge Knight “verbally re-

Strained” the plaintiff from entering upon the

premises of the jointly owned corporation “on pain of

incarceration.” Again taking the complaint at its face

value for argument purposes only, there is no doubt

but that a superior court judge, acting in a divorce ac-

tion, has the authority to direct the parties to conduct

themselves in such a manner as not to interfere with

the lives and livelihood of the other party.

Finally, and without any attempt to belabor the

point, even if the Court committed error in either of

these two actions, the plaintiff should have had that

error corrected by appeal and is not entitled to bring a

Civil rights action against the judge. Pierson v. Ray,

supra.

24a

B. The complaint fails to state a cause of ac-

tion because the statute of limitations has

expired prior to the commencement of this

action.

According to the allegations in the complaint, the

cause of action against Judge Knight must have

arisen, if atall, as a result of his judicial actions taken

on September 16, 1969. The instant action was filed on

March 28, 1977.

In a federal action brought pursuant to 42 U.S.C.

§1983, the court will look to the period of limitation

which a state court would apply had the action seeking

a similar relief been brought in the state court.

Knowles v. Carson, 419 F.2d 369 (5th Cir. 1969); Nevels

v. Wilson, 423 F.2d 691 (5th Cir. 1970).

The federal court, in determining the applicable

statute of limitations, must look to the state limita-

tions on causes of action most nearly analogous to the

ones presented in the complaint. Knowles v. Carson,

supra.; Harkless v. Sweeny Independent School Dis-

trict, 388 F. Supp. 738 (S.D. Tex. 1975); Sotonoura v.

County of Hawaii, 402 F. Supp. 95 (D. Hawaii 1975).

The complaint is not absolutely clear as to the

theory under which plaintiff is proceeding. However,

the applicable statute of limitations must be found

either in Ga. Code Ann. §3-1002, which provides that

actions or injuries to personalty shall be brought

within four years after the right of action accrues, or in

Ga. Code Ann. §3-1003, which provides that all suits

for damages or conversion of personal property shall

be brought within four years after the right of action

25a

accrues. In either event, plaintiff was limited to a four-

year statute of limitations, which has long since ex-

pired.

CONCLUSION

Granting all presumptions in favor of plaintiff, as is

required when the Court rules on a motion by a defen-

dant to dismiss for failure to state a claim upon which

relief can be granted, the complaint clearly fails to

State a cause of action against Coweta Judicial Circuit

Superior Court Judge Lamar Kni¢ht, and his motion

to dismiss should be granted since he is entitled to

judicial immunity and the statute of limitations has

expired.

Respectfully submitted

ARTHUR K. BOLTON

Attorney General

ROBERT S. STUBBS, II

Executive Assistant

Attorney General

/s/ DON A. LANGHAM

DON A. LANGHAM

First Assistant

Attorney General

PLEASE ADDRESS ALL

COMMUNICATIONS TO:

DON A. LANGHAM

First Assistant Attorney General

140 State Judicial Building

Atlanta, Georgia 30334

Telephone: (404) 656-3392

26a

APPENDIX G

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

Pleasant Richard Tally

(a.k.a. Dick Tally)

a resident of Virginia

Plaintiff

versus C.A. No. C77-359 A

William P. Johnson,

Homer Williams,

Aubrey W. Gilbert and

Lamar H. Knight

residents of Georgia

Defendants

PLAINTIFF’S RESPONSIVE BRIEF

TO DEFENDANT LAMAR H. KNIGHT'S

MOTION TO DISMISS

Comes now the Plaintiff, Pleasant Richard Tally, in

the above styled civil action, in response to Defendant

Lamar H. Knight’s Motion to Dismiss identified pur-

suant to Rule 12 (b) of the Federal Rules of Civil

Procedure for the United States District Courts, as

amended, 28 U.S.C., on the ground that said Complaint

fails to state a claim upon which relief can be granted.

Defendant Lamar H. Knight proffers two bases in

support of his motion: (1) tnat the Defendant, Lamar H.

27a

Knight, is not amenable to suit under 42 U.S.C. Section

1983, relying upon the doctrine of judicial immunity,

and (2) that the applicable Statute of Limitations had

expired prior to the commencement of the action.

Following proper notice to Counsel for the Defen-

dant, Lamar H. Knight, Plaintiff herein requests that

said Motion be scheduled for hearing on a day certain

and that said Motion be denied based upon the follow-

ing reasons:

(a) the Amended Complaint factually alleges a

clear absence of subject matter jurisdiction of

Style Crest Southeast Co., Inc., in the state

proceeding brought by Frances White Tally

against Pleasant Richard Tally for divorce. The

State court proceeding for divorce, presided

over by Defendant Lamar H. Knight, had

neither in personam nor in rem jurisdiction

over the legal entity, Style Crest. On these facts,

as pleaded, the rule in Bradley v. Fisher applies

and the doctrine of judicial immunity cannot be

invoked to shield the Defendant, Lamar H.

Knight, from liability under 42 U.S.C. Section

1983.

(b) The rules of law enunciated in Pierson v. Ray,

Guedry v. Ford and Williams v. Sepe are not

applicable to the claim pleaded before this

Court because in each case the Court found that

subject matter jurisdiction, through in per-

sonam or in rem process, was present. Once

subject matter jurisdiction is present, a judge

acting in excess of authority or with malicious

28a

or corrupt motivation is shielded by the doc-

trine of judicial immunity.

absence of subject matter jurisdiction and the

malicious participation in the abuse of state

court process which deprives this Plaintiff of

his right to earn a living makes the Defendant,

Lamar H. Knight, liable under 42 U.S.C. Section

1983.

(d) Plaintiff's Amended Complaint does not allege

injury to personalty or conversion of personal-

ty, but the deprivation of the fundamental right

to earn a living. Therefore, Georgia Code An-

notated Sections 3-1002 (Personalty) and 3-1003

(Conversion of Personalty) do not apply to the

facts pleaded so as to bar relief against Defen-

dant Lamar H. Knight.

PLAINTIFF'S RESPONSE TO DEFENDANT LAMAR

¥:.. KNIGHT’S STATEMENT OF FACTS

The Plaintiff, Pleasant Richard Tally, has factually

alleged in paragraph 2 of Count 5 of the Amended

Complaint that:

“The Defendant, Judge Lamar H. Knight, under

color of state authority, in a state proceeding

for divorce, without subject matter jurisdic-

tion of the corporation, Style Cresi, or of all the

shareholders thereof, (emphasis our own) and

without notice or opportunity to be heard as to

the respective civil rights of the Plaintiff in

this action, Pleasant Richard Tally as re-

quired by the substantive and procedural due

process provisions of the 14th Amendment of

the United States Constitution and 42 U.S.C.

Section 1983, did deliberately and uncon-

Stitutionally transfer possession and control

of the entire interest in Style Crest to Frances

White Tally, the plaintiff in the state

proceeding for divorce.”

Plaintiff respectfully draws this Court's attention to

the key phrase in the foregoing exerpt from the

Amended Complaint; that is, “without subject matter

jurisdiction of the corporation, Style Crest, or of all

the shareholders thereof.” In this concept, “without

jurisdiction”, lies the basis for liability of the Defen-

dant, Lamar H. Knight, to thi inti

. , s Pla ;

Richard Tally. intiff, Pleasant

Plaintiff's paragraph 4 of Count 5 of the Amended

Complaint states, in part, that:

“The Plaintiff, Pleasant Richard Tally, had no

opportunity to secure and produce evidence of

his ownership of stock; namely, the stock cer-

tificate evidencing his 1000 shareholder in-

terest in Style Crest.”

Defendant's counsel has stated to this Court that: “asa

result of the September 16, 1969 hearing, Judge Knight

caused the transfer of certain personal property tothe

plaintiff's wife ....” The Plaintiff responds that

neither Frances White Tally nor Pleasant Richard Tal-

30a

ly produced any shareholder certificates during the

interlocutory hearing for divorce. Therefore, no per-

sonalty, such as shareholder stock certificates, was or

could be transferred or converted on September 16,

1969, by the Defendant, Lamar H. Knight.

Further, Defendant's counsel has also stated to this

Court that: “the complaint alleges (the corporation,

Style Crest,) was owned primarily by the plaintiff and

his wife.”’ Count 1 of the Amended Complaint recites

that the corporation, Style Crest, had three share-

holders, Frances White Tally, Pleasant Richard Tally

and Homer Williams. It is crucial to understand that to

effect transfer and possession of a Georgia corpora-

tion requires subject matter jurisdiction of the cor-

poration to have been properly before Judge Knight.

This is done either by attachment of corporate assets

of the corporation, giving rise to in rem jurisdiction;

or by proper joinder of the third shareholder, Homer

Williams, to the divorce proceedings, giving rise to in

personam jurisdiction. If this is understood, it is not

astounding from the clear absence of subject matter

jurisdiction before Judge Knight that this transfer

“rendered this aspect of the decision in the divorce

proceeding a complete judicial nullity” and “being

null and void, completely stripped the Defendant,

Lamar H. Knight, of any judicial immunity.” Yet the

Motion to Dismiss, now before this Court, grants al]

facts pleaded as admitted and all inferences from

those facts for purposes of the motion. This Court has

been advised not to pause even for a moment before

dismissing Judge Knight from this suit. The Plaintiff

is certain that this Court spent more than than just one

minute reading the Amended Complaint.

3la

Exhibit No. 1, attached hereto, is a copy of the notice

of publication of the incorporation in Carroll County,

Georgia, of the corporation, Style Crest Southeast Co.,

Inc., showing the incorporators, Frances White Tally,

Pleasant Richard Tally and Homer Williams, signed

by the Defendant, Lamar H. Knight, and dated

November 22, 1966.

A. THE AMENDED COMPLAINT FAC-

TUALLY ALLEGES A CLEAR

ABSENCE OF SUBJECT MATTER

JURISDICTION OF STYLE CREST

SOUTHEAST CoO., INC., IN THE STATE

PROCEEDING BROUGHT BY FRANCES

WHITE TALLY AGAINST PLEASANT

RICHARD TALLY FOR DIVORCE. THE

STATE COURT PROCEEDING FOR

DIVORCE, PRESIDED OVER BY

DEFENDANT LAMAR H. KNIGHT, HAD

NEITHER IN PERSONAM NOR IN REM

JURISDICTION OVER THE LEGAL EN-

TITY, STYLE CREST. ON THESE

FACTS, AS PLEADED, THE RULE IN

BRADLEY V. FISHER APPLIES AND

THE DOCTRINE OF JUDICIAL IMMUNI-

TY CANNOT BE INVOKED TO SHIELD

THE DEFENDANT, LAMAR H. KNIGHT,

FROM LIABILITY UNDER 42 U.S.C.

SECTION 1983.

It is the genera] rule that where a judge has jurisdic-

tion he is not civilly liable for acts done in the exer-

cise of his judicial function. Jurisdiction is defined as

32a

the authority to act officially in the disposition of the

matter at hand. The disposition complained of in this

lawsuit is the transfer of possession and control of the

Georgia corporation, Style Crest Southeast Co., Inc.,

by Defendant Lamar H. Knight, in a divorce proceed-

ing in the clear absence of jurisdiction of Style Crest.

Service of state court process never issued against the

corporate assets of Style Crest nor against all the

shareholders of Style Crest so as to properly have the

corporate entity before the divorce court. A judicial

act is one performed by a judge upon parties or prop-

erty before his court by in personam or in rem attach-

ment of subject matter jurisdiction by the power of

process. If attachment by process exists, the exercise

by a judge of his state granted authority is privileged.

He is immune from civil liability whether his disposi-

tion exceeds his statutory authority or whether the

disposition is prompted by corrupt or malicious

motivation. In order to foster integrity and in-

dependence of the judiciary, courts have consistently

held that an appeal of an excessive exercise or a Cor-

rupt or malicious exercise of authority was the plain-

tiff's remedy. The premise for such consistent hold-

ings has been a threshold finding of the existence

before the judge of subject matter jurisdiction. Acts

performed wholly without subject matter jurisdiction

are not judicial acts. They are null and void acts which

have also been termed complete judicial nullities. The

remedy for non-judicial acts differs from judicial acts.

An appeal of a non-judicial act may not restore the

rights of the party injured. Since the public policy of

integrity and independence of the judiciary is not fos-

tered by non-judicial acts, the usurpation of judicial

power by a state judge strips the usurper of the protec-

33a

tion of judicial immunity. J udges of limited or general

Statutory jurisdiction are treated the same. Each may

be divested of immunity to civil liability by the

usurpation of judicial power to act, in the clear

absence of authority to act. The remedy, then available

to the plaintiff, would depend upon the rights in-

fringed by the non-judicial acts. The Civil Rights Act

of 1871, now codified as 42 U. S. C. Section 1983, is the

proper remedy when the plaintiff alleges the depriva-

tion of property and liberty rights; that is, the right to

earn a living, secured by part ownership of the busi-

ness out of which the living is pursued, protectable as

fundamental rights of all U. S. citizens.

In summary, state judges with authority to act,

because subject matter jurisdiction through process

is present, act judicially and therefore are immune.

The immunity is not incomplete because the judicial

acts are in excess of state granted power; or are

motivated by personal corrupt or malicious attitude.

But state judges without authority to act, because

there is a clear absence of subject matter jurisdiction

through lack of process, do not act judicially and are

therefore not immune to civil liability. In the latter

situation, the usurper risks the perils of any exercise

of state conferred powers and his good faith or inno-

cent motivations are no defense, for no excuse is per-

missible. This differentiation is more fully discussed

in 46 Am Jur 2d, Judges Sections 72 - 84; 46 Am Jur 2d

Justices of the Peace Sections 18 - 24.

On the facts pleaded by this Plaintiff before this

Court the rule in Bradley v. Fisher, 13 Wall (U.S.) 335,

20 L. Ed. 646 (1871) applies and the doctrine of judicial

34a

immunity cannot be invoked to shield the Defendant,

Lamar H. Knight, from liability under 42 U.S.C. Sec-

tion 1983. Mr. Justice Field, in delivering the opinion

of the Court, explained the circumstances under which

liability would lie by the following illustration:

“Thus, if a probate court, invested only with

authority over wilis and the settlement of es-

tates of deceased persons, should proceed to

try parties for public offenses, jurisdiction

over the subject of offenses being entirely

wanting in the court, and this being neces-

sarily known to its judge, his commission

would afford no protection to him in the exer-

cise of the usurped authority. But if, on the

other hand, a judge of a criminal court, invest-

ed with general criminal jurisdiction over of-

fenses committed within a certain district,

should hold a particular act to be a public

offense, which is not by the law made an

offense, and proceed to the arrest and trial of a

party charged with such act, or should

sentence a party convicted to a greater

punishment than that authorized by the law

upon its proper construction no personal

liability to civil action for such acts would at-

tach to the judge, although those acts would be

in excess of his jurisdiction, or of the juris-

diction of the court held by him, for these are

particulars for his judicial consideration,

whenever his general jurisdiction over the

subject-matter is invoked.” p. 352.

35a

B. THE RULES OF LAW ENUNCIATED IN

PIERSON V. RAY, GUEDRY V. FORD

AND WILLIAMS V. SEPE ARE NOT

APPLICABLE TO THE CLAIM PLEAD-

ED BEFORE THIS COURT BECAUSE IN

EACH CASE THE COURT FOUND THAT

SUBJECT MATTER JURISDICTION,

THROUGH IN PERSONAM OR IN REM

PROCESS, WAS PRESENT. ONCE SUB-

JECT MATTER JURISDICTION IS PRES-

ENT, A JUDGE ACTING IN EXCESS OF

AUTHORITY OR WITH MALICIOUS OR

CORRUPT MOTIVATION IS SHIELDED

BY THE DOCTRINE OF JUDICIAL IM-

MUNITY.

In Pierson v. Ray, 386 US 547,87S Ct 1213, 18L Ed 2d

288 (1967), the plaintiffs were arrested by municipal

police officers on charges of violating a state breach-

of-peace statute while attempting to use the

segregated facilities of an interstate bus terminal.

They were convicted on the charges when brought

before a municipal police justice. On appeal to the

County Court, one plaintiff was acquitted; the charges

against the others were dropped. In an action in U.S.

District Court under 42 U.S.C. Section 1983, the plain-

tiffs sought money damages against the municipal

police justice and the police officers. The jury return-

ed a verdict for the defendants and the plaintiffs

appealed. The Court of Appeals for the Fifth Circuit

held that the judge was immune under 42 U.S.C. Sec-

tion 1983. The U.S. Supreme Court, in reviewing the

record below, stated:

36a

“The record is barren of any proof or specific

allegation that Judge Spencer played any role

in these arrests and convictions other than to

adjudge petitioners guilty when their cases

came before his court.”

“It is a judge’s duty to decide all cases within

his jurisdiction that are brought before him.”

(18 L Ed 2d 288, at 294.)

The key concepts here are (1) in personam jurisdiction

(by arrest) of the parties before the court existed; and

(2) the disposition of the matter at hand; namely, the

adjudication of the guilt or innocence of the parties

could be properly upheld because the proceeding was

one for breach of the peace. The “due process” re-

quirements of notice and opportunity to be heard were

fulfilled. Relating these concepts to the case before

this Court, we find (1) a lack of in personam or in rem

jurisdiction of the corporation, Style Crest, before

Judge Knight’s court; and (2) the disposition of the

matter at hand; namely, the transfer of possession and

control of the Georgia corporation could not properly

be maintained because the proceeding was not one for

a declaration of respective rights in the corporation,

but one for divorce between parties who did not repre-

sent the entire interests in the corporation. The “due

process” requirement of notice and opportunity to be

heard by all interest holders was not fulfilled.

Pierson v. Ray, supra, does not deal with a specific

allegation that subject matter jurisdiction was lack-

ing before the municipal police justice. Pleasant

Richard Tally v. William P. Johnson, et. al. does

37a

specifically allege lack of subject matter jurisdiction.

The deprivation of this Plaintiff's civil rights was

proximately caused by this null and void disposition

of the corporate entity, Style Crest Southeast Co., Inc.

In Williams v. Sepe, 487 F 2d 913 (5th Cir. 1973),

plaintiff brought a civil rights action against a judge

who attempted to investigate a report that the plaintiff

had misrepresented himself as the judge’s law clerk

without giving the plaintiff written notice of the crim-

inal contempt charge as required by the Florida Code

of criminal procedure. The court held that “the defects

in the procedure employed (emphasis our own) will

not support a conclusion that there was a clear

absence of ail jurisdiction .” The reason this conclu-

sion is sound is because the plaintiff in Williams v.

Sepe was personally before J udge Sepe and

procedural irregularities do not rise to the standard of

clear absence when irregular in personam jurisdic-

tion exists. Plaintiff maintains that he has alleged a

lack of all jurisdiction, a failure of any procedure be-

ing employed, in regard to Style Crest by the Defen-

dant, Lamar H. Knight.

In Guedry v. Ford, 431 F 2d 660 (1970), plaintiff filed a

civil rights action against a District Attorney and a

city court judge who had charged, tried, convicted and

sentenced him unfairly on a charge of making harass-

ing telephone calls. The gist of the suit by the plaintiff

was a charge of conspiracy to deprive civil rights. The

court held that “(T)he subject matter of the charges

against the plaintiff, Allen T. Guedry, Jr. fall within

the jurisdiction and purview of the City Court of Ham-

mond (presided over by the defendant judge, Ford).”

38a

Based upon the court’s finding that the only complaint

of the plaintiff in Guedry was that he did not get a fair

trial the civil rights action was dismissed. Again, this

case is not on point with the case pleaded by this Plain-

tiff. The corporation, Style Crest, was not sued or

indicted, tried and convicted. Neither party attempted

to divorce the corporation, but divorce each other.

C. KNOWLEDGE OF OR RECKLESS DIS-

REGARD OF THE CLEAR ABSENCE OF

SUBJECT MATTER JURISDICTION

AND THE MALICIOUS PAR-

TICIPATION IN THE ABUSE OF STATE

COURT PROCESS WHICH DEPRIVES

THIS PLAINTIFF OF HIS RIGHT TO

EARN A LIVING MAKES THE DEFEN-

DANT, LAMAR H. KNIGHT, LIABLE UN-

DER 42 U.S.C. SECTION 1983.

In Osbekoff v. Mallory, 188 NW 2d 294 (Iowa 1971),

annotated in 64 ALR 3d 1242, atown mayor, acting asa

magistrate of a mayor's court, was held not immune

from liability for abuses of process to collect a civil

debt and by delivering the plaintiff's automobile to the

dealer-creditor without plaintiff's consent. The Court

reversing judgment of dismissal of the action in the

lower court as barred by the doctrine of judicial im-

munity noted that the plaintiff had not voluntarily

submitted to the jurisdiction of the mayor's court to

deal with his property. The Court stated that his mere

presence in the mayor's court in answer to the crim-

inal charge against him had not giventhe mayor, act-

ing as a magistrate, jurisdiction in any proceeding to -

39a

hear and determine the plaintiff's rights in his auto-

mobile, since no matter had been pending in the

mayor's court involving the plaintiff's property

rights in the automobile and no process had been is-

sued by the mayor’s court justifying seizure of the

automobile by the court. The Court in discussing the

doctrine of judicial immunity stated that it extended to

courts of limited jurisdiction and further stated that

when a magistrate acts wholly without jurisdiction,

civil liability attaches for his malicious abuse of state

process under the pretense of acting in his official

capacity. Thus, the Court concluded that the lower

court erred in dismissing the action for it appeared

that the plaintiff had not failed to state a claim for

relief under any set of facts which could be proven.

The facts are on point. Pleasant Richard Tally had

not voluntarily submitted himself to the jurisdiction

of Judge Knight’s court to deal with his shareholder

interest in Style Crest or his right to earn a living

secured by this ownership. His mere presence before

Judge Knight did not cure the pretense of authority to

act. No matter involving Style Crest was then pend-

ing and no process issued against Style Crest. Yet

Defendant Lamar H. Knight signed over possession

and control of Style Crest, for which action alone he is

amenable to suit in this Court under 42 U.S.C. Section

1983 because he deprived this Plaintiff ofthe right to

earn a living.

D. PLAINTIFF’S AMENDED COMPLAINT

DOES NOT ALLEGE INJURY TO PER-

SONALTY OR CR CONVERSION OF

PERSONALTY, BUT THE DEPRIVA-

40a

TION OF THE FUNDAMENTAL RIGHT

TO EARN A LIVING. THEREFORE,

GEORGIA CODE ANNOTATED SEC-

TIONS 3-1002 (PERSONALTY) AND 3-

1003 (CONVERSION OF PERSONALTY)

DO NOT APPLY TO THE FACTS PLEAD-

ED SO AS TO BAR RELIEF AGAINST

DEFENDANT LAMAR H. KNIGHT.

Plaintiff's Amended Complaint alleges, in part, that

on September 16, 1969, Defendant Lamar H. Knight

presided as a Superior Court Judge in acivil action for

divorce brought by Frances White Tally against this

Plaintiff, Pleasant Richard Tally. The court on

September 16, 1969, had only subject matter juris-

diction of the parties, Frances White Tally and Plea-

sant Richard Tally, for purposes of the pending

divorce proceeding. However, the interlocutory

decree of divorce recited that possession and control

of Style Crest Southeast Co., Inc., a Georgia corpora-

tion, were transferred to Frances White Tally. The

Georgia corporation, Style Crest, had three share-

holders, Frances White Tally, Pleasant Richard Tally

and Homer Williams. Homer Williams was nota party

to the divorce proceeding before Defendant Lamar H.

Knight on September 16, 1969. The interlocutory

decree of divorce signed by Judge Knight on that date,

effecting disposition of Style Crest and its share-

holders’ interests, was a complete judicial nullity — a

null and void act — because the state court presided

over by the Defendant, Lamar H. Knight, had neither

in personam nor in rem subject matter jurisdiction.

This action performed by the Defendant, Lamar H.

Knight, under color of state law, in the clear absence of

4la

jurisdiction, deprived this Plaintiff of the fundamental

right to earn a living protectable under 42 U.S.C. Sec-

tion 1983. Georgia Code Annotated Sections 3-1002 and

3-1003 concerning causes of action for injury to per-

sonalty or conversion of personalty are not applicable

to the facts pleaded in this claim for relief. The injuries

suffered by this Plaintiff, cognizable under 42 U.S.C.

Section 1983 before this Court, are (1) the deprivation

of the right to earn a living and (2) the stigma attached

to the status imposed upon this Plaintiff; that is, this

Plaintiff had to state to future employers that he was

fired from a corporation of which he owned a substan-

tial shareholder interest. This Plaintiff has not been

able to earn a living as an outside salesman of fur-

niture, since the actions of the Defendant, Lamar H.

Knight, on September 16, 1969, which actions

terminated both his status as a salesman of furniture

and part owner of a furniture manufacturing plant.

Since these rights have never been restored, each day

that passes gives rise to a new offense so that any

applicable statute of limitations will never run to bar

relief. Further, the Constitution of the State of Geor-

gia, adopted in 1945, and the statutes enacted

thereunder make specific grants of jurisdictional

authority to Superior Court Judges who are charged

with knowledge of their jurisdictional limitations.

Dispositions of interests not properly before the court

are fraudulent. Since the underlying fraud, lack of

subject matter jurisdiction of the Georgia corpora-

tion, Style Crest, was only discoverable on November

15, 1976, this claim for relief under 42 U.S.C. Section

1983 based upon the torts of fraud and abuse of process

42a

is not barred. The Defendant, Lamar H. Knight, is

liable to this Plaintiff, Pleasant Richard Tally.

Respectfully submitted,

Richard A. Straser

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.