# Petition — Bloch v. Bloch > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1825%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 439 U.S. 984 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1825%3A1. Public record. Not legal advice.