Petition — Bloch v. Bloch

4°

is7a

IN THE SUPREME COURT OF THE =

UNITED STATES —_

October Term, 1978

r

Harotp Biocu, Bernarp Biocsg,

Joan Buocu, Rosatyn Bioc#

and Naruts Corp.,

Petitioners,

vs.

Eruyte Bioca,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

l Cadillac Saquar« i

ha + is “Po 2 -

Vetroit, Michigan 482°6

a. | a | ~~ ~ —

545) 963-6969

Bernarp Briocn, Petitioner

326 Lakewood Drive

Bloomfield, Michigan 48013

(313) 645-0117

AMERICAN BRIEF AND RECORD COMPANY, 125 WEALTHY STREET, S. E.

GRAND RAPIDS, MICHIGAN 49503 —- TELEPHONE 458-5326

TABLE OF CONTENTS

Page

dc canine 1

AEE SEES EEE ER cc 2

I saa slcdilaseees sacar 2

Constitutional Provisions Involved 0000000000000... 3

NE 4

Reasons for Granting the Writ 00.0000... 10

A. The Decision Below Whereby The Title Of Peti-

C.

tioners, Bernard Bloch, Joan Bloch, Rosalyn

Bloch And The Naruth Corp. Was Taken From

Them By An Action Brought Against Them

Without Summons And Complaint And Subse-

quently Heard, Constitutes A Denial Of Due

Process Under The Fifth And Fourteenth

Amendments of the United States Constitution

The Decision Below Whereby The Action Of The

Trial Court To Take Judicial Notice Of Certain

Alleged Previously Determined Facts Adverse

To The Opponents Was Made And Taken Con-

trary To The Provisions Of The Federal Rule

Of Evidence 201, And Contrary To The Guide-

lines Set Forth In Existing Standards Deter-

mined By The Supreme Court ..................000---

The Decision Below Whereby The Trial Court

Determined It Had Jurisdiction Over The De-

fendant-Petitioners Without Personal Service

Upon Any Of Them Either By Summons Or

Complamt And Thereupon Proceeded To Grant

An Order Taking Their Property Was A De-

nial To Petitioners Of Due Process Under The

Fifth And Fourteenth Amendments Of The

United States Constitution .................00.....0..00.....

10

TABLE OF CONTENTS (CONT’D)

Page

D. The Decision Below Of The Court Of Appeals

For The Third Cireuit In Affirming The Court

Below On Appeal Covered Several Issues Rais-

ing Svstantial Questions Yet Was Rendered

Without Opinion Thereby Denying The Supreme

Court The Benefit Of The Appellate Court’s

Insight Contrary To The Standard Set In Tay-

lor v McKeithen, 407 U.S. 191; 32 L Ed 2d 648

(1972), Therefore Requiring A Remand To That

Court For Its Detailed Opinion ..............0..0......... 16

RT HOES Te N.S E AOE CPN ARTS IO Oe OER BARRE SIT 17

Appendix 1 — Order Of Trial Court To Add Defend-

ant-Petitioners By Serving Them With A Com-

IRIE II IN = sschccsindcdtirsetiemsanpogiiocassieseouckoktenanien 18

Appendix 5 — Excerpts From Judge Joseph’s Memo-

randum Stating That The Petitioner-Defendants

Be Joined In Order To Give Them An Opportunity

Se a I sc tinerneg eee eens tetetievtaenenicen 20

TABLE OF AUTHORITIES

Cases:

Page

Dreis v. Kelly (Service by Publication) (1962), 304

Wa Cee ses Ses 6,15

Garner vy. Louisiana, 82 S. Ct. 248 0 9,13

Mullane y. Central Hanover Trust Company, 339

a OCHO einen ee ee 0, 6,13

Ohio Bell Telephone Co. v. Publie Utilities Comm..

o¢ S. Ct. 724 (1937); L ed 1093 0... 10,13

Pennoyer v. Neff, 95 U.S. 714 (1877), 24 L ed 565... 5

Schroeder v. City of New York, 371 U.S. 208 (1962) 5)

Shaffer v. Heitner, 97 S. Ct. 2569 (1977) ooo. 6

Taylor v. MeKeithen, 407 U.S. 191; 32 L ed 2d 648

CIEE siciincthacadhetis onssteanaueleendesieidl curaletnered oc teuctaaac ce: 16

Walker v. Hutchinson, 352 U EINE ccstarescsuces 5

Rules:

Rule of Evidence of Civil Procedure:

NE EE pitiecnecteicntiianentecene la rc ea 13

RN SIE OU sitcantetchteccienakan chtiecekite sc acacdoneo 3

IN THE SUPREME COURT OF THE

UNITED STATES

October Term, 1978

|

Haro.tp Biocu, Bernarp Bwioca,

Joan Biocu, Rosatyn BiLocu

and Naruta Corp.,

Petitioners,

Vs.

Eruy.te Biocu,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

Petitioners pray that a Writ of Certiorari issue to re-

view the judgment and opinion of the United States Court

of Appeals for the Third Cireuit entered in this action on

July 3, 1978.

OPINION BELOW

The opinion of the Court of Appeals is not yet reported.

The petition for rehearing is not yet reported. The memo-

randum and order of the District Court is not yet reported.

JURISDICTION

The judgment of the Court below was entered on July

3, 1978. The jurisdiction of this Court is invoked under

28 U.S.C. Section 1254 (1).

QUESTIONS PRESENTED

The issues involved in this case raise a substantial and

procedural Federal question under the Due Process Clause

of the 5th and 14th Amendment to the United States Con-

stitution which should be reviewed in order to prevent a

travesty of justice and set a dangerous precedent that is

repugnant to our constitution.

1. Did the Municipal Judge, sitting as a Federal District

Court Judge deprive Petitioners-Defendants of their con-

stitutional right of Due Process by the taking of their

property after joining them in a divorce action for alimony

without a complaint and summons served upon them and

with the intention that they would not be heard and then

deed away their property by taking judicial notice of an

alleged prior Court decision made by another judge with-

out notice to Petitioners and without giving Petitioners

an opportunity to oppose the judicial notice?

2. Is the opinion and order of the Third Cirenit Court

of Appeals from which this appeal is taken sufficient to

provide the Supreme Court a basis upon which to consider

the due process question raised in Petitioner’s appeal

where none of the issues in Petitioner’s brief were answered

or alluded to and therefore should be remanded to Third

Cireuit Court of Appeal for a determination?

CONSTITUTIONAL PROVISIONS INVOLVED

The applicable provisions in the United States Con-

stitution are found in 5th and 14th Amendments, which

provide, in pertinent part:

No person shall be deprived of life, liberty or property

without due process of law.

FEDERAL RULE OF EVIDENCE INVOLVED

The applicable Rule of Evidence involved is found in

Judicial Notice, Rule 201 (e) which provides in pertinent

part:

That a timeiy request or notice be made in order to

give the adversary an opportunity to oppose the taking

of Judicial Notice.

STATEMENT OF THE CASE

In a divorce action between Ethyle Bloch, Plaintiff vs.

Harold Bloch, Defendant, and upon motion of the attorneys

for Plaintiff, Bernard Bloch, Rosalyn Bloch and Naruth

Corp. along with the Bank of Nova Scotia were made addi-

tiona! parties defendant, it appearing to the court that

they were necessary persons and entities whose presence

was required to be heard for a just adjudication for

alimony-in-gross in the divorce action. (see Defendant-

Petitioner’s Exhibit O, page 5, Appendix 5) Municipal

Judge Antoine Joseph, sitting by special designation as a

Federal District Judge did, on August 5, 1976, order that

the above-named persons be brought in as added parties

defendant and he did further order that said parties be

served with a Summons and Complaint, within 5 days.

(see Appendix 1)

On November 3, 1976, notice for hearing on any amended

motion not pursuant to court order was filed by the at-

torney for Plaintiff Ethyle Bloch was sent by ordinary

mail from the Virgin Islands to the parties defendant in

Michigan, for a hearing to be held on November 5, 1976.

The referred-to notice of hearing for November 5, 1976

Was unaccompanied by any pleading; nor at that time had

any summons and complaint been served upon any added

party; nor did the caption on such notice of hearing show

defendant-petitioners as parties, nor why they had received

such notice and/or whether any relief was being sought

against them,

On November 17, 1976, Judge Joseph signed an order

permitting that service might be made on Naruth Corp. by

mailing a copy of the summons to said defendant at its

last known address; and by the publication of the summons

in the local newspaper once a week for four consecutive

5

weeks. However, no summons or complaint was mailed

to Naruth Corp.; nor was the service by publication in the

local newspaper of St. Croix once a week for four con-

secutive weeks made as ordered. St. Croix being the

Island and territorial division where the property and the

trial court is located.

After hearing held on April 22, 1977, it was learned that

the attempt at publication was made in the St. Thomas

Daily News, a paper published locally on the island of

St. Thomas which is a different territorial division.

The insufficiency of service by publication had a long

common law history showing misgivings concerning the

equity of such constructive service and has often been held

that such service was a priori invalid. Beginning with

Pennoyer v Neff, 95 U.S. 714 (1877) and continuing to

recent decisions, the largely fictional distinction between

in rem and in personam jurisdiction has been eroded. Ref-

erence is made to Mullane v Central Hanover Bank & Trust

Co, 339 U.S. 306 (1950) at page 312, and Schroeder v City

of New York, 371 U.S. 209 (1962) at page 212, wherein

it was held: ‘‘the requirement that parties be notified af

proceedings affecting their legally protected interests is

obviously a vital corollary to one of the most fundamental

requisites of due process — the right to be heard’’; also

Walker v City of Hutchinson, 352 U.S. 112 (1956) at page

116 wherein the court said, ‘‘it is common knowledge that

mere newspaper publication rarely informs a landowner

of proceedings against his property’’ rejecting such notice

as appropriate in that case.

In Mullane, supra, at page 315 the Supreme Court used

strong words in dealing with service by publication, as

follows:

‘+... It would be idle to pretend that publication alone

as prescribed here is a reliable means of acquainting in-

terested parties of the fact that their rights are before

6

the courts. It is not an accident that the greatest num-

ber of cases reaching this court on the question of ade-

quacy of notice have been concerned with actions

founded on process constructively served through lo-

cal newspapers. Chance alone brings to the attention

of even a local resident an advertisement in small type

inserted in the back pages of a newspaper, and if he

makes his home outside the area of the newspaper’s

normal circulation, the odds that the information will

never reach him are large indeed. In weighing its suf-

ficiency on the basis of equivalence with actual notice,

we are unable to regard this as more than feint.’’

The fruition of this historical trend was stated most

succinctly by Justice Marshall in Shaffer v. Heitner, 97S.

Ct. 2569, (1977), as follows: ‘‘the justice that governs a

State’s power to adjudicate in personam should govern its

power to adjudicate personal rights to property located in

the state.”’

The ruling in Shaffer, supra, demands that an in per-

sonam jurisdiction test is to be applied to the adjudication

of personal rights to property located within the state, as in

5 VI.C, Section 112(a)(1) for service by publication, when

the action (such as a divorce action) is unrelated to the

property.

Dreis v. Kelly, C.A. 3d (1962), 304 f2d3, (1962), at page 4,

holds that when ‘‘the entire object of the suit is to deter-

mine the personal rights and obligation of the defendants

it is solely a matter in personam...*’ Applied herein, the

service upon defendant-petitioner(s) by publication is in-

effectual since personal service of the defendant is requi-

site. Nor can a special appearance such as was made by

counsel for the Naruth Corp. at the April 22, 1977 hearing

become the basis for jurisdiction, as contended by Plaintiff-

Respondent's attorney in his appellate brief at page 4

therein. See Shaffer, supra, at page 2583.

7

At the rehearing before the Third Cireuit Court of Ap-

peals, Defendant-Petitioners contended that the attempt at

substituted service upon Naruth was totally imprope.; and

as such, that the matter should be remanded to the District

Court for the Virgin Islands with an instruction that no

further action may be taken regarding the property in ques-

tion without first obtaining proper service upon Naruth

Corporation.

On April 22, 1977 a special appearance only was entered

by attorney Sheen on behalf of added defendants Bernard

Bloch¥/Joan Bloch, Rosalyn Bloch and the Naruth Corpora-

tionf during which he did challenge the court’s jurisdiction

over said defendants in that no summons and complaint had

been served upon any of them, and that the Court lacked

jurisdiction due to lack of proper notice. Judge Joseph dis-

regarded all arguments in the premises and ruled that all

added parties defendant were duly before the court. Then

without request or notice and without giving Defendant-

Petitioners an opportunity to be heard and oppose, he took

judicial notice of an alleged prior court decision by another

judge, in which Naruth Corporation was not a party, that

title to Golden Rock property (lot 22 and lot 243A) had

been already decided against Defendant-Petitioners. Judge

Joseph stated that he thought that Judge Green of the Dis-

trict Court had already made a determination that the title

of such newly added parties in the Golden Rock property

(lot 22 and Lot 243A) was not theirs, but that of Defendant-

Petitioner Harold Bloch, and accordingly not entitled to

judicial recognition in the April, 1977 hearing, (see tran-

script page 10), in the following exchange:

‘*Mr. Sheen: ‘Your Honor, may I for one moment?

In trying to follow the matter procedurally, is it coun-

sel’s position or the court’s position that there should

not be a hearing on the disposition of the property at

Golden Rock because there has already been a deter-

mination on the matter?’’

8

‘“‘The Court: ‘I think Judge Green of the District

Court sitting by special designation, determined that

the various documents which were executed by Harold

Bloch and Ethyle Bloch with respect to the Golden

Rock property was a fraud and e sham. They are not

entitled to judicial recognition. I think that it is in

the record,’’

Mr. Sheen then withdrew from the case. At this point

Defendant-Petitioner Bernard Bloch orally entered his gen-

eral appearance with the view to avoid a travesty of justice,

acting as a stockholder for Naruth and thereby an interested

party to challenge the conclusion of the court with respect

to the corporation’s title to lot 243A. He argued that the

representation of attorney Alkon to the Court that the title

of the corporation to such lot 243A came by way of a quit

claim deed from Harold for $1.00 was untrue, and that such

company had obtained such title by purchase from the for-

mer titleholder with funds provided by the company. Upon

such challenge, Mr. Alkon admitted that his statement to

such effect from the former hearing was incorrect, Never-

theless Judge Joseph took judicial notice of the finding

made at the prior hearing at which Naruth Corp., was not

before the court at that time for any reason.

Municipal Judge Joseph, sitting by special designation,

did preclude the offer of any proof to the contrary and he

did also preclude any argument to avoid a decision pro tanto

by the court based upon such judicial notice, and he did pro-

ceed to grant the relief then requested by the attorneys for

Ethyle Bloch that Harold Bloch having failed to pay to

Ethyle Bloch the sum of $100,000 as alimony in gross, the

property known as lots 22 (titled in the names of Bernard

Bloch, Joan Bloch and Rosalyn Bloch via purchase at a ju-

dicial foreclosure sale) and 243A (titled in the name of the

Naruth Corp. by direct purchase of that company from a

third party predecessor in title) be deeded over to Plaintiff-

Respondent Ethyle Bloch, the same to be effected by action

of the Clerk of the Court,

9

The pleadings filed on behalf of Plaintiff-Respondent

Ethyle Bloch for the motion heard in such manner on April

22, 1977 gave no advance notice to any newly-added party

defendant of the intent of her counsel to have the court rely,

via the taking of judicial notice, of the decision of another

judge sitting at a hearing for determination of alimony in a

divorce action that the title of persons not parties to such

action and not present or otherwise heard at such hearing

was not theirs but that of Harold Bloch. Hence such new de-

fendants were surprised at the request made orally by at-

torney Alkon at the April 22, 1977 hearing that such judicial

notice be taken and they were aghast that the Court would

deign so to do.

The sine qua non of due process is notice. In Mullane vy.

Central Hanover Bank & Trust Co, supra, the supreme court

discussed the taking of judicial notice and said that where

the proponent requests that judicial notice be taken, the

opponent will receive notice by being served with a copy of

the request. The constitution requires that a party be in-

formed when the court is noticing facts. In Garner v. Louisi-

ana, 82 8. Ct. 248, 256, 257 (1961); 7 L Ed 2d 207, 219 the

Supreme Court said:

‘Unless the defendant is informed at the trial of the

facts of which the court is taking judicial notice, not

only does he not know upon what evidence he is being

convicted, but, in addition, he is deprived of any op-

portunity to challenge the deduction drawn from such

notice or to dispute notoriety or truth of the fact al-

legedly relied upon. Moreover, there is no way by

which an appellate court may review the facts and law

of a case and intelligently decide whether the findings

of the lower court are supported by evidence where the

evidence is unknown. Such an assumption would be

denial of due process.”’

Although Garner was a criminal case, it states well the

essence and need for adequate notice in the matter of the

10

taking of judicial notice. In Ohio Bell Telephone Co v. Pub-

lic Utilities Commission, 57 8. Ct. 724 (1937); L Ed 1093

the Supreme Court held that due process also requires dis-

closure of facts judicially noticed in other proceedings.

The Court of Appeals for the Third Cireuit, summarily,

and without a written opinion, affirmed the judgment of

the District Court.

REASONS FOR GRANTING THE WRIT

A. The Decision Below Whereby The Title Of Petitioners,

Bernard Bloch, Joan Bloch, Rosalyn Bloch And The

Naruth Corp. Was Taken From Them By An Action

Brought Against Them Without Summons And Com-

plaint And Subsequently Heard, Constitutes A Denial

Of Due Process Under The Fifth And Fourteenth

© Amendments Of The United States Constitution.

The operative facts are not in dispute. A Trial Judge

sitting by special designation in the Federal District Court

in the Virgin Islands took action to determine the question

of alimony-in-gross in the divorcee action between Ethyle

and Harold Bloch. No other person was a party before the

court at such time in such action for any purpose. The de-

cision of the court was that the defendant Harold Bloch

should pay to the plaintiff Ethyle Bloch alimony-in-gross

in the amount of $100,000.00, and failing so to do, that he

should convey to her lots 22 and 243A Golden Rock Sub-

division. Harold Bloch did not pay the ease settlement fig-

ure. However, it became evident that the order of the Dis-

trict Court for conveyancing in the alternative could not be

implemented for the reason that record title to both such

lots were in others.

At the time of the hearing and decision of the District

Court on the matter of alimony-in-gross in the divorce ac-

tion, the record title to lot 22 was in Bernard Bloch, Joan

= a ee

11

Bloch and Rosalyn Bloch by virtue of their purchase at a

sheriff's sale upon the foreclosure by a second-mortgagee

bank of a mortgage on the premises. Although contested

by Ethyle Bloch at the time, the marshal’s deed and sale

to such purchasers was confirmed by the court.

Also at that time, the record title to lot 243A was in the

Naruth Corp. by virtue of its purchase of the same from a

third party predecessor in title.

Apparently, the attorneys for Ethyle Bloch acted in

August, 1976 to call this evident problem in enforcement of

the alternative provision to the attention of Municipal

Judge Antoine Joseph, then sitting as a Federal District

Judge by special designation. Judge Joseph did grant a

motion to add these four parties as defendants in the di-

vorce-alimony action and his order provided that a Sum-

mons and Amended Complaint be prepared and served upon

the added parties within five days. No such complaint was

ever prepared or filed and no such complaint and summons

therefore was ever personally served upon any such added

party.

The record and file in that case shows that attorney Alkon,

counsel for Plaintiff-Respondent Ethyle Bloch, had ad-

dresses for each added party defendant, yet in November,

1976 said attorney did obtain an order for substituted serv-

ice upon the Naruth Corp. by publication.

The record and file in that case shows that these added

parties were later served with a motion by mail to be heard

on April 22, 1977, for the purpose of obtaining an order

conveying their respective titles in lots 22 and 243A to

Ethyle Bloch, in the alternative, upon the failure of Harold

Bloch to pay to her the sum of $100,000.00.

The record and file show that these added parties ap-

peared specially to contest the jurisdiction of the court.

Judge Joseph ruled that the Court had jurisdiction over all

such parties. Only Bernard Bloch did thereupon appear

generally for the purpose of arguing the metion then before

12

the court. The trial court granted the order for the convey-

ancing. All such parties have appealed,

Such a file and record almost defies the imagination. It

seems fantastic that a trial court would attempt to decide

upon a contest over a title to land without having before

it a complaint to such effect. Yet that is what the trial

court did in 1975 when it purported to rule in a cause for

alimony in a divorce action upon the quality of the record

title to land of persons not parties to that action.

It would seem that the order of the District Court by

Judge Joseph entered in August, 1976 requiring the addi-

tion of the affected parties and the trial of their title upon

the challenge of Plaintiff-Rspondent Ethyle Bloch via an

amended complaint, was a logical step to correct that ob-

vious error, made in 1975. However, after that point in time

all logie fails; and further all substantive and procedural

due process also failed.

No personal party added defendant was ever personally

served with process or complaint; nor was the corporate

party so added ever personally served with any process.

Summons via a disputed process of publication locally via

a non-local newspaper was found to have been made upon

the non-resident corporation. Petitioners know of no case

wherein a summons alone was used to acquire jurisdiction

of a party to a contravery.

In 1975 and at all pertinent times up to April 22, 1977,

neither Ethyle nor Harold Bloch were in the chain of title

to lot 243A. The former title of Harold Bloch (only) in lot

22 was lost via the judicial foreclosure and sale of his in-

terest in 1972.

These undisputed operative facts demand recognition

by the court, yet that recognition has so far been denied.

We pray that the Supreme Cuort grant the Writ to avoid

this blatant denial of the rights of Petitioners and the taking

of their property without due process of law.

13

B. The Decision Below Whereby The Action Of The Trial

Court To Take Judicial Notice Of Certain Alleged

Previously Determined Facts Adverse To The Opponents

Was Made And Taken Contrary To The Provisions Of

The Federal Rule Of Evidence 201, And Contrary To

The Guidelines Set Forth In Existing Standards Deter-

mined By The Supreme Court.

There was never any previous court hearing in which

title to property, lot 22 and lot 243A, was alleged and ad-

judicated. Yet Judge Joseph rendered a decision as if

there was a previous judicial decision on said property.

The file and record in this cause clearly shows that De-

fendants-Petitioners had no notice prior to the date and

time of hearing on April 22, 1977, of the intention of the

attorney for Plaintiff-Respondent to request judicial notice

that the court relied upon the alleged and fictitious finding

made by a prior court adverse to the interest of the Peti-

tioners.

Also, the Petitioners had no notice of the intention of the

trial judge to rely upon judicial notice of the alleged find-

ings made by another judge in a prior court decision which

was adverse to the Petitioners in which Naruth Corpora-

tion was not a party.

Then Judge Joseph, by judicial notice, denied the Peti-

tioners an opportunity to be heard regarding title to their

property by stating that lot 22 and lot 243A had already

been determined by another court. He then deeded lot 22

and lot 248A to Plaintiff-Respondent.

The standards of the Supreme Court as set forth in Wu/-

lane v. Central Hanover Bank & Trust Co., Garner v. Louisi-

ana, and Ohio Bell Telephone Co. v. Public Utilities Com-

mission, define the requisite notice in implementing Rule

201 of the Federal Rues Of Evidence. It is not just a matter

of degree, it is a matter of the virtual absence of any notice

whatever.

14

The decision in the trial court was affirmed without opin-

ion by the Court of Appeals, hence, Petitioners are without

any basis to know the mind of the appellate court. The fail-

ure to grant the Writ would set a precedent contrary to all

existing standards and decisions of the Supreme Court.

C. The Decision Below Whereby The Trial Court De‘er-

mined It Had Jurisdiction Over The Defendant-Peti-

tioners Without Personal Service Upon Any Of Them

Either By Summons Or Complaint And Thereupon Pro-

ceeded To Grant An Order Taking Their Property Was

A Denial To Petitioners Of Due Process Under The

Fifth And Fourteenth Amendments Of The United

States Constitution.

The record and file below clearly shows the failure to

make personal service upon any added party defendant of

a summons or a complaint. The mailing of a motion and a

notice of hearing is no proper substitute for the issuance

of summons or the filing and service of a complaint.

It is clear that in the absence of any service of a sum-

mons, a party is not before the court; and it is also axio-

matic that in the absence of the service upon him of a com-

plaint, a party is without notice of the allegations and

prayers for relief which may be to his detriment.

The object of the action taken on April 22, 1977 was to

act upon the personal rights of the added parties defendant,

Petitioners herein, in lots 22 and 243A, Golden Roek Sub, in

St. Croix. This is not an action upon any mortgage or other

lien or for any levied tax. Accordingly, in personam and

not in rem jurisdiction over the parties is required.

The basis for jurisdiction over Defendant-Petitioners

Joan Bloch and Rosalyn Bloch is the service by mail of

the motion and notice of hearing thereon. Their sole ap-

pearance by counsel was special and for the purpose of con-

testing jurisdiction over themselves. Thus any defects in

service upon them, if any, were preserved, for purposes of

any appeal.

The basis for jurisdiction over Defendant-Petitioner

Bernard Bloch is the service by mail of the motion and

notice of hearing thereon, together with his general ap-

pearance entered orally on April 22, 1977 following the

denial of the motion made in his behalf to dismiss for lack

of proper service upon him. Had there been a proper com-

plaint filed against him he would have had a duty to re-

spond or be in default thereof. Petitioner Bernard Bloch

claims that in the absence of any complaint no relief could

be had against him in any event, notwithstanding his co-

erced general appearance made in order to have at least a

minimal opportunity to have heen heard.

The basis for jurisdiction over Defendant-Petitioner the

Naruth Corp. rests upon the substituted service by publica-

tion. Such Defendant-Petitioner contends manner of. ac-

complishing such service by publication was defective in

that newspaper so used was not published locally but rather

was one published on a neighboring island. Such defendant

contends that the decision in Dreis v. Kelly, supra, controls

and that no rights of such party in the property known as

lot 243A Golden Rock Sub could have been properly de-

cided in the court below.

All Defendant-Petitioners ask that the Supreme Court

grant the Writ for the reason that the facts relating to

service upon them herein are clearly contrary to the stand-

ards set forth in existing cases and that a denial thereof

would represent a substantial departure therefrom and

would set a dangerous precedent in the application of the

due process clauses of the Fifth and Fourteenth Amend-

ments to the United States Constitution.

16

D. The Decision Below Of The Court Of Appeals For The

Third Circuit In Affirming The Court Below On Appeal

Covered Several Issues Raising Substantial Questions

Yet Was Rendered Without Opinion Thereby Denying

The Supreme Court The Benefit Of The Appellate

Court’s Insight Contrary To The Standard Set In Taylor

v McKeithen, 407 U.S. 191; 32 L Ed 2d 648 (1972),

Therefore Requiring A Remand To That Court For

Its Detailed Opinion.

The file and record which came to the United States Court

of Appeals For the Third Cireuit in this matter contained

substantial questions relating to the matter of personal

service and of the requirement of in personam rather than

in rem jurisdiction in order for the District Court below to

act with regard to the rights of the parties added as de-

fendants to the original divorcee action.

Further, substantial questions relating to the taking of

private property without due process of law based upon

the action of the District Court below to preclude any con-

test the findings of fact adverse to their interests in land

judicially noticed by the trial court so made in a cause and

at a hearing in and at which they were not a party nor

present and heard, and which was held at a time in which

the interests so later deprived were then existing.

The confusion added by the presence of two lawsuits in

the divorce action and two separate foreclosure proceed-

ings, one of which is yet pending in the District Court

serves to make the need for a detailed opinion of the Court

of Appeals in connection with its decision to affirm all the

more necessary

Absent any detailed opinion by the Court of Appeals, the

Supreme Court is without the benefit of the insight of that

Court in support of its decision. The decision in Taylor v.

MecKeithen, 407 U.S. 191, 82 L Ed 2d 648 (1972) set the

standard trom which the decision of the Court of Appeals

without the opinion is a substantial departure in the cir-

17

cumstances requiring remand accompanied by an order to

furnish a detailed opinion.

CONCLUSION

The affirmation by the Court of Appeals of the decision

of the District Court without opinion has raised substantial

constitutional questions of due process and which, should

this Writ be denied, would establish substantial departures

from existing law. In the same manner, such decision below

as affirmed has raised important questions in the applica-

tion of the standards and rule for the taking of judicial no-

tice of matters decided at a prior hearing or cause and in-

volving parties other than those before the court at the

time such judicial notice wes taken. The denial of the Writ

would establish a precedent which would be a substantial

and unwarranted departure from the present law. Defend-

ant-Petitioners may be without relief and thereby deprived

of their property without due process of law unless the

Supreme Court shall act.

For these reasons a Writ of Certiorari should issue in re-

view of the judgment and opinion of the Court of Appeals

and of the decision and order of the District Court of the

Virgin Islands.

Respectfully submitted,

JaMES GARDNER Co tns, Esq.

Attorney for Petitioners

342 Public Ledger Bldg.

Philadelphia, PA 19106

(215) 925-0580

Bernarp Buiocn, Petitioner

326 Lakewood Drive

Bloomfield, Michigan 48013

(313) 645-0117

18

APPENDIX 1 — Order Of Trial Court To Add Defendant-

Petitioners By Serving Them With A Com-

plaint And Summons.

IN THE DISTRICT COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. CROIX

ErHyLe Biocu,

Plaintiff,

v. Civil No. 71/31

Harotp Buioc#,

Defendant.

ORDER

This cause came on to be heard on motion of plaintiff,

Ethyle Bloch, for an order making Bernard Bloch, Joan

Bloch, Rosalyn Bloch, Naruth Corp. aud the Bank of Nova

Scotia additional parties defendant herein, and it appear-

ing to the Court that said Bernard Bloch, Joan Bloch, Rosa-

lvn Bloch, Naruth Corp. and Bank of Nova Scotia are per-

sons or entities whose presence is needed for a just adjudi-

cation, as provided by Rule 19 of the Federal Rules of Civil

Procedure; that they can be served with process; and that

their joinder will not deprive this Court of jurisdiction.

IT IS ORDERED:

1) That Bernard Bloch, Joan Bloch, Rosalyn Bloch, Na-

ruth Corp. and Bank of Nova Scotia be made party defend-

ants to this action; and that the caption of this action shall

be amended accordingly;

19

2) That Plaintiff serve and file an amended complaint

within 5 days after entry of this Order; and

3) That a copy of said amended complaint, together

with a copy of summons and a copy of this Order be served

upon the said Bernard Bloch, Joan Bloch, Rosalyn Bloch,

Naruth Corp. and Bank of Nova Scotia within 10 days after

entry of this Order.

(s) Antoine L. Joseph

Judge

Sitting by Special Designation

Dated this 5th day of August, 1976.

APPENDIX 5 — Excerpts From Judge Joseph’s Memo-

randum Stating That The Petitioner-

Defendants Be Joined In Order To

Give Them An Opportunity To Be

Heard.

Exhibit ‘‘O’* — Page 5

of alimony even though rights of third parties may have

been involved. But it is one thing to deal with securities,

it is another thing to deal with real property on which they

are outstanding mortgages when all parties are not before

the court and the genuineness of the encumbrances is not

settled. This court is reluctant to disregard the title holders

and mortgages without giving third parties an opportunity

to be heard. Also, in Conan the court found that the de-

fendant wife had met her burden in establishing a result-

ing trust. This is not the case here.

The better approach to awarding alimony in gross aris-

ing from the present state of facets and which collaterally

has received appellate approval is that adopted by the

court in Knowles vs. Knowles. There the court after decid-

ing that the wife had an equal share in the marital home-

stead, granted the husband an option to pay alimony in

gross within a reasonable time failing which he was ordered

to convey his interest in certain property to her.

It may be that all the transfers to Naruth are a sham. On

the other hand they may be genuine, and I do not believe it

wise to further postpone the resolution of the issues in this

case.

Out of assets approximately over $300,000 in value I

award plaintiff $100,000, IT have considered all of the prop-

erty defendant Bloch has amassed, his tendency to transfer

property beyond the reach of his wife’s advisers, the fact

that he has removed to another jurisdiction, and the wife’s

necessities, the physical condition of the parties and the

wife’s independence and ability to earn her own way.

Child support which defendant Bloch has already F oa

ordered to pay, seems reasonable under all of the facts, and

at the hearing, defendant agreed that $225.00 monthly sup-

port is not beyond his abilities.

Defendant is granted the option of deeding the property

at 22 Golden Rock as well as Lot 243A Golden Rock to plain-

tiff in lieu of permanent alimony. An order to this effect

will be signed upon presentation.

Exhibit ‘‘O’’ — Page 6

The Court of Appeals in a landmark decision, E'stien vs.

Christian has set forth certain criteria for the award of at-

torney’s fees. The teaching of that case is that fees may be

awarded only after there has been a stipulation, affidavit or

hearing on the amount requested. Plaintiff’s attorney must

make known to the court what route he wants to utilize.

(s) Antoine L. Joseph

Judge, Sitting by Designation

DATED: May 19, 1975