# Opposition — Louisville & Nashville Railroad v. Hasty

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 1003

## Text

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_—

Supreme Court, U. i
| FILED

NOV § 1978

MIOQHAEL R@DAK, JR., CLERK

IN THE
Supreme Court of the United States
OCTOBER TERM, 1978

No. 78-598

LOUISVILLE & NASHVILLE RAILROAD
COMPANY and STEVE HAVARD,
Petitioner,

versus

RHEETA HASTY, A Minor, By and Through Her Mother and Next
Friend, MRS. FAYE HASTY,
Respondent.

REPLY BRIEF TO
PETITION FOR A WRIT OF CERTIORARI

John L. Hunter

Post Office Drawer 1287
Pascagoula, MS 39567
(601) 762-5422

Attorney for Respondent

CUMBEST AND CUMBEST, P. A.
ATTORNEYS FOR RESPONDENT

SCOFIELDS QUALITY PRINTERS P O BOX 53096 N O. LA 70153 - 504/822-1611

INDEX

oo eS eee ere rer eee eee 1-8

SUPPLEMENTAL STATEMENT OF THE
RE ov eadersvieate Ravewbaesanekseueye oa. 8-12

REASONS FOR DENYING THE WRIT:

I. Certiorari Should be Denied Since the
Statutes Do Not Violate Due Process
on Their Face and as Applied Here and
That the Decision Below is Not Con-
trary to Applicable United States
Supreme Court and Lower Federal
Re CIN aoe Doss cad boos oe 12-18

II. Certiorari Should be Denied Because
the Statutes as Applied do Not Deny
Equal Protection of the Laws to
FR esi dcchakedseceyeevayeo. 18-22

II]. Certiorari Should be Denied Because
There is No Constitutional Right to a
Jury Trial in a Civil Suit in a State
Court in Mississippi in Instances such
as This, nor Under the Seventh
Amendment of The United States
RE 2 Cs) 0s Cue o's Oo uke nek ¢ 22-25

ai BES 5) 3.0 Vicrc ew eve sde pe dea kanes 25
Ee OEE cob eSS ce cr ere enenekeekasetunsars 26

il

INDEX (Continued)

APPENDIX Page

Motion to Quash Process and Attempted
Attachment and Dismiss Bill for Want of

SUriGGCtiie © os. w'vnkcpsadoesntveaee la-5a
SRIGUIMIONN oo icons kek uecasneneneeeeee 5a-7a
Néotion 00 DMAWNG . 5.662 sds one cba eee 7a-9a
Ansvver to Bill of Attachment ........... 10a-15a
Order (overruling Motion to Dismiss) ....... 16a
Motion for Re-Hearing or New Trial ..... 17a-20a

TABLE OF AUTHORITIES
CASES:

Bute v. People of State of Illinois, 333 U.S. 640,
657 (footnote) 68 S. Ct. 763, 92 L. Ed. 986

COORD vce kus cin ecdscvnn veces
Ellis v. Dixon, 349 U.S. 458, 99 L. Ed. 1231, 75

S. Ct. 660 (0086) civ iakvaden eee
Fuentes v. Shevin, 407 U.S. 67, 92S. Ct. 1983

(E9742 oc vkvausat ocean ssa ieee 15,
Hardware Dealers’ Mutual Fire Insurance

Company of Wisconsin v. Glidden Co., 284

U.S. 151, 158, 52S. Ct. 69,71,76L. Ed. 214

CSGSES |. kc Wes cnaes caeeenale tc

Heary v. State of Mississippi, 379 U.S. 443, 13
L. Ed. 2d 408, 85 S. Ct. 564, reh den 380
U.S. 926, 13 L. Ed. 2d 813, 85 S. Ct. 878
(1965)

TABLE OF AUTHORITIES (Continued)

Page
Hulbert v. City of Chicago, 202 U.S. 275, 26
rr fe seckcceeess cee 4,5,6
Illinois Central Railroad Co. v. McDaniel, 246
Miss. 600, 151 So. 2d 805 (1963) ............. 23

International Shoe Co. v. Washington, 326

U.S. 310, 66 S. Ct. 154, 98 L. Ed.95(1945) ..13,15

Louisville & Nashville Railroad Co., et al v.
Rheeta Hasty, 360 So. 2d 925 (1978) .........

McKay v. McInnes, 279 U.S. 820, 49 S. Ct.
Se 0) or) er

Massachusetts Board of Retirement v.
Murgia, 427 U.S. 307, 96 S. Ct. 2562, 49
etc ec cen enee coves

Matthews v. Thompson, 231 Miss. 258, 95
I EO eT oe

Maxwell v. Dow, 176 U.S. 581, 20S. Ct. 494,
EE

Milliken v. Meyer, 311 U.S. 457, 463,615. Ct.
338, 343, 6S L. Ed. 276 (1940) ...........65..

Mississippi Chemical Corporation v.
Chemical Construction Corporation, 444
9 a nee oe

New York Central Railroad Company v.
White, 243 U.S. 188, 208, 37 S. Ct. 247, 61
ep LU Cy Gen escccedsecccce coos.

iv

TABLE OF AUTHORITIES (Continued)

Page
Olesen v. Trust Company of Chicago, 245
P28 S22 CU Cie TBF) ov ctines wee cves we 23,24
Pennoyer v. Neff, 5 Otto 714, 95 U.S. 714, 24
LS ek BES CIB T ed cee velisseces eee nncaen 4eane 14
Raley v. Ohio, 360 U.S. 423, 3 LL. Ed. 1344, 79
OR Sa LAE en ease kee e eo Rea ke 8
Shaffer v. Heitner, 433 U.S. 186, 97 S. Ct.
LO: et ej rrr 12,13,14,15,20

Simmons v. West Haven Housing Authority,
399 U.S. 510, 26 L. Ed. 2d 764, 90 S. Ct.
1960, reh den 400 U.S. 856, 27 L. Ed. 2d 94,
OE Ce: Be Cre rca bh cceenakecaenveureavees rf

Sniadich v. Family Finance Corp., 395 U.S.
337, 89 S. Ct. 1820,23L. Ed. 2d 349(1969) .15,16,17

Southern Motor Express Co. v. Magee Truck

Lines, Inc., 177 So. 633 (1937) 2... eccvces vee 20,21
Southern Railway Co. v. Allison, 190 U.S. 326,

a3 5. Ct. Fis, SF t.. Ea FOTO CHRO aos ne ae 21
Street v. New York, 394 U.S. 576,22 L. Ed. 2d

O72, OFS. Ch, 1964 (IGG) 6. cnc ccesak BO alk ac 7

Talbot & Higgins Lumber Co. v. McLeod
Lumber Co., 147 Miss. 186, 113 So. 433
SRT T acre Kea ae eee en eee eae 23

Wagner Electric Manufacturing Company v.
Lyndon, 262 U.S. 226, 232,435. Ct. 589, 67
Le NE VOMEEET Vaecnals Oo neadeea eeu mee teu 24

Vv

TABLE OF AUTHORITIES (Continued)

Page
Walker v. Sauvinet, 92 U.S. 90, 23 L. Ed. 678
SON heap ar kens eu nr ear iweiae OMe kanh omens 24
STATUTES:
BP Ure ES o pnctaeds pte kiducedenienns 52
28 USCA Supreme Court Rule 19 .............. 2
28 USCA Supreme Court Rule 23(f) ............. 3
§11-31-1, Mississippi Code of 1972, An-
RN yn nt errr ere a re 19

IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1978

No. 78-598

LOUISVILLE & NASHVILLE RAILROAD
COMPANY and STEVE HAVARD,

Petitioner,
versus
RHEETA HASTY, A Minor, By and Through Her

Mother and Next Friend, MRS. FAYE HASTY,
Respondent.

REPLY BRIEF TO
PETITION FOR A WRIT OF CERTIORARI

JURISDICTION

Petitioners contend that this Court has jurisdiction
to hear this matter based upon 28 USCA §1257(3).
With this contention Respondent cannot agree. Title
28 USCA §1257(3) states:

lflinal judgments or decrees rendered by the
highest court of a state in which a decision

2 3

Respondent contends that these provisions govern-
: be reviewed by the Supreme der
aie” alae (3) md Writ of Cer- ing jurisdiction on Writ of Certiorari have not been met

in the case presently before the Court. It becomes ob-
vious when reviewing the Petition for Writ of Cer-
tiorari and its failure tocomply with 28 USCA Supreme
Court Rule 23(f), which requires:

tiorari, where the validity of a treaty or stat-
ute of the United States is drawn in question
or where the validity of a state statute is drawn in ques

tion on the grounds of it being repugnant to the Constitu-
tion. treaties, or laws of the United States, or where
any title, right, privilege or immunity is
specially set up or claimed under the Constitu-
tion, treaties, or statutes of, or commission
held or authority exercised under, the United
States. [Emp. ours].

If review of the judgment of a state court is
sought, the statement of the case shall also
specify the stage in the proceedings in the
court of first instance and in the appellate
court, at which, and the manner in which, the
federal questions sought to be reviewed were
raised; the method of raising them (e.g., by a
pleading, by request to charge and exceptions,
by assignment of error); and the way in which
they were passed upon by the court; such per-
tinent quotations of specific portions of the
record, or summary thereof, with specific ref-
erence to the places in the record where the
matter appears (e.g., ruling on exception, por-
tion of the court’s charge and exception
thereto, assignment of errors) as will show
that the federal question was timely and
properly raised so as to give this court jurisdic.
tion to review the judgment on writ of cer-

Respondent would show that the Petitioners failed
to properly raise issues which would comply with this
provision in order to establish jurisdiction. In addition,
Title 28 USCA Supreme Court Rule 19 provides:

1. A review on writ of certiorari is not a
matter of right, but of sound judicial discre-
tion, and will be granted only where there are
special and important reasons therefor. The
following, while neither controlling nor fully
measuring the court's discretion, indicate the
character of reasons which will be considered:

(a) Where a state court has decided a federal _ iiieadh

question of substance not theretofore deter-

mined by this court, or has decided it in a way Reoponiieak. would urse tien the Kms Week he
probably not in accord with applicable orders which Petitioners seek to have reviewed have

decisions of this court. not been adjudicated by the highest court of the State

4

- of Mississippi in such a manner as to properly raise
these issues on Petition for Certiorari. This contention
is based upon the fact that a timely raising of the con-
stitutional issues must be made in order for the United
States Supreme Court to consider the granting of a
petition for certiorari. In Hulbert v. City of Chicago, 202
U.S. 275, 26S. Ct. 617 (1906) the Court said that there
must be a clear showing of the raising of a federal ques-
tion which was decided upon by the state court before
the United States Supreme Court would consider
reviewing the issue. In that particular case the
petitioner attempted toraise the constitutionality of an
ordinance which provided for an assessment for a
public improvement. Among the basis of appellant's
objections were the following:

“Said act concerning local improvements,
passed June 14, 1897, and all amendmeiits
thereto, are not only contrary to the Constitu-
tion of Illinois, but they are also contrary to
the Constitution of the United States and to
the Fourteenth Amendment thereof.

“Said act concerning local improvements, said
ordinance, which is the basis of the present
proceedings, and all documents and orders
relating thereto are contrary to the Constitu-
tion of the United States and to the Four-
teenth Amendment thereof, because such act,
ordinance, document, and orders seek to
deprive objector of property without due
process of law.

5

“Said ordinance and proceedings are in other
respects illegal, unconstitutional, and void.

“The proceedings herein and said act are con-
trary to the Constitution of the United States,
and to the Fourteenth Amendment thereof,
because the Petitioner herein, under and by
virtue of said act and of said proceedings,
seeks to deprive these objectors of their prop-
erty without due process of law. Said proceed-
ings and said act are alsocontrary to the Con-
stitution of the United States, and to the Four-
teenth Amendment thereof, for the reasons
set forth in the several foregoing objections.”
26 S. Ct. 617, 618.

It is submitted that the petitioners in this case failed to
follow through on any constitutional objections and
failed to raise same in such a specific way as was raised
in the case of Hulbert v. Chicago, 202 U.S. 275, (See 1a-3a,
7a-9a, 17a-19a). In Hulbert v. Chicago, 202 U.S. 275, 26
S. Ct. 617, 618, the Court stated:

The Bill of Exceptions shows that plaintiff in
error did not bring to the attention of the trial
court that the act of the state under which the
assessment was made, or any of the pro-
ceedings were contrary to the Fourteenth
Amendment to the Constitution of the Unit-
ed States, nor did he assign as error on appeal
to the Supreme Court that the rulings of the
trial court or its judgments infringed that

6

amendment. Hulbert v. Chicago, 202 U.S. 275, 26
S. Ct. 617, 618.

Petitioners in this case only attempted to raise an
issue in reference to denial of jury trial in violation of
Amendment VII of the Constitution of the United
States and in violation of Amendments V and XIV of
the Constitution of the United States (7a-9a). This mo-
tion which was filed the same day as Petitioners
entered a general appearance in this cause by filing
their answer was not ruled upon until subsequent to
the filing of said answer to Bill of Attachment. In
Petitioners’ Motion for Rehearing, or a New Trial,
again, the only constitutional issue raised had to do
with the alleged right of a jury trial and, again, there
was no mention of a violation of the Due Process or
Equal Protection Clauses, nor an opportunity for the
trial court to rule thereon. (17a-20a).

Petitioners now seek in the United States Supreme
Court by their Petition for Writ of Certiorari to put the
Chancery Court of Jackson County, Mississippi in
error on issues upon which it was never given a
reasonable opportunity to rule. They also attempt to
put the Supreme Court of the State of Mississippi in
error in reference to its “Due Process” argument,
which was not raised in its Brief.

It has always been held that in order for the United
States Supreme Court to consider a Constitutional
issue, that said issue must have been necessary for the

7

decision reached from the highest state court below.
See Simmons v. West Haven Housing Authority, 399 U.S. 510,
26 L. Ed. 2d 764, 90 S. Ct. 1960, reh den 400 U.S. 856,
27 L. Ed. 2d 94, 91 S. Ct. 23 (1970), and Ellis v. Dixon,
349 U.S. 458, 99 L. Ed. 1231, 75S. Ct. 850 (1954). This
principle has been variously stated, however, it should
be noted that wherein the decision of the state’s
highest appellate court may rest on a non-federal
ground that this Court has repeatedly declined to
proceed upon.

It has also been held even in criminal cases in ref-
erence to appeals coming before the court that the issue
as to sufficiency and propriety in raising a federal ques-
tion is left to the sound discretion of the United States
Supreme Court and that it would be presumed that
when the highest state court failed to pass upon a
federal question that the omission was due to want of
proper presentation of the issue tothe state courts, and
that the burden was upon the petitioner to show
otherwise. Street v. New York, 394 U.S. 576, 22 L. Ed. 2d
572, 89S. Ct. 1354 (1969),

This Court has also held that it will decline to review
state court judgments which rest on independent or
adequate state substantive or procedural grounds,
even where those judgments also cited federal
questions. Henry v. State of Mississippi, 379 U.S. 443, 13
L. Ed. 2d 408, 85 S. Ct. 564, reh den 380 U.S. 926, 13
L. Ed. 2d 813, 85 S. Ct. 878 (1965).

8

In the case at bar, it is submitted that the Motion to
Dismiss filed in Chancery Court analogous with the
date of the filing of an answer entering a general
appearance was a procedure not recognized under Mis-
sissippi Chancery practice and that, therefore, the
Constitutional issues of Due Process and Equal Protec-
tion were not properly raised. It is alternatively sub-
mitted that the Petitioners herein waived any Con-
stitutiona! defects by proceeding to make their general
appearance in the Chancery Court of Jackson County,
Mississippi, without having a ruling on their Motion to
Dismiss.

In the case of Raley v. Ohio, 360 U.S. 423, 3 L. Ed.
1344, 79 S. Ct. 1257 (1959), this court recognized in
determining a jurisdictional question based upon its
appellate jurisdiction that there must be “an explicit
and timely insistence in the state courts that a state
statute, AS APPLIED, is repugnant to the Federal Con-
stitution, treaties, or laws” [Emp. ours], and “that the
highest court of the state shall have passed on the
federal Constitutional questions”.

It is respectfully urged that the issues attempted to
be raised before the United States Supreme Court by
Petitioners herein were not previously raised as re-
quired.

SUPPLEMENTAL STATEMENT OF THE CASE

Petitioner, Louisville & Nashville Railroad Com-
pany, owns more than 29 miles of track in Jackson

— ery were 2 ee ern iee

Labbe sindweghide: SA Res tee Nee he

—_

ee ae

9

County, Mississippi. The Petitioner, Louisville &
Nashville Railroad Company, owns other real property
other than that within its right of way and owns
numerous items of personal property in Jackson Coun-
ty, Mississippi. The amount of property is valued in ex-
cess of the amount sued for in the original Complaint in
this cause. Louisville & Nashville Railroad Company is
a foreign corporation which has qualified to do busi-
ness in the State of Mississippi with a local agent in
charge of the Pascagoula, Jackson County, Mississippi,
depot.

The accident for which this case was filed arose in
Harrison County, which adjoins Jackson County, Mis-
sissippi. The Louisville & Nashville Railroad Company
track which was attached herein crosses three counties
in the southern part of Mississippi. The accident com-
plained of occurred upon this same line of track.

Service was had upon the Petitioner, Louisville &
Nashville Railroad Company, by personal service upon
its local depot agent, W. J. McRaney. The record clearly
shows that no assets of the Louisville & Nashville
Railroad Company were ever confiscated by the Sheriff
or other judicial official, and that no cash on hand or
personal property was ever interfered with in any way
in this cause. In addition, no property was taken, nor
was Louisville & Nashville Railroad Company’s free
use thereof affected in any way. Louisville & Nashville
Railroad Company continued to operate just as they
had before the filing of this lawsuit.

10

Petitioners also contend in their Statement of Facts
that they complained of denials of Equal Protection and
Due Process by filing a motion in the Chancery Court
of Jackson County, Mississippi, attacking the jurisdic-
tion. Petitioners initially did not raise any violation of
the United States Constitution in reference to the Due
Process or Equal Protection Clauses, but objected to
the jurisdiction of the court by virtue of a Motion to
Quash Process and Attempted Attachment and to Dis-
miss Bill for Want of Jurisdiction (1a-5a) based upon the
following allegations:

That the Defendant, Louisville & Nashville
Railroad Company, owns and maintains prop-
erty in Jackson County, Mississippi, valued in
excess of the amount sued for in the Bill of
Complaint.

That the Defendant is qualified to do busi-
ness in the State of Mississippi and has a regis-
tered agent for service of process in the state,
as well as a local agent in charge of the
Pascagoula, Mississippi office, either of whom
may receive process which would lead to a
valid in personam judgment against the Defen-
dant if a judgment were obtained.

The Petitioners further pleaded that they were being
denied the right of a jury trial but initially raised no
Constitutional argument in reference thereto.

11

Subsequently, the Petitioners filed a Motion to Dis-
miss (7a-9a — a procedure not recognized under the
State Practice in Mississippi in either Chancery or Cir-
cuit Courts. In this motion they attempted to raise the
denial of the right of trial by jury in violation of Amend-
ment VII of the Constitution of the United States and
in violation of Amendments V and XIV of the Constitu-
tion of the United States. In addition, they raised issues
as to the violation of provisions of the Mississippi Con-
stitution, which the Supreme Court of Mississippi
decided adversely to the Petitioners herein.

On July 31, 1974, the same day that the alleged Mo-
tion to Dismiss was filed, Petitioners also filed an An-
swer to Bill of Attachment (10a-15a), which was a
general appearance in the Chancery Court and thereby
submitted themselves to the Chancery Court in per-
sonam. The Motion to Dismiss was not ruled on until
August 6, 1974.

Petitioners also state that they raised the Due
Process and Equal Protection arguments in their Mo-
tion for a New Trial (17a-20a). Again, the only Federal
Constitutional issues which were raised were stated
thusly:

That in denying the Defendant their right to
be sued in the Circuit Court and in denying
the jury trial, the Court was in errer and
violated the rights of these Defendants under
Amendment VII of the Constitution of the

12
United States and Amendment V and Amend-
ment XIV of the Constitution of the United
LT eee

Therefore, the issues of denial of Due Process and
Equal Protection were not specifically raised at this
point in time.

It was not until the Brief and Assignment of Errors
were filed before the Mississippi Supreme Court that
the Equal Protection argument was specifically raised.
The “Due Process” argument was not even raised in
the Brief filed in the Mississippi Supreme Court (see
footnote 1, page 3a of the Appendix of the Petition for a
Writ of Certiorari).

REASONS FOR DENYING THE WRIT

Certiorari Should Be Denied Since The
Statutes Do Not Violate Due Process On
Their Face And As Applied Here And That
The Decision Below Is Not Contrary To
Applicable United States Supreme Court And
Lower Federal Court Decisions.

Petitioners apparently place much reliance on the
case of Shaffer v. Heitner, 433 U.S. 186, 97 S. Ct. 2569
(1977), which dismissed a suit arising under the
Delaware Attachment Statute. The basis of that hold-
ing, however, was that the Defendant therein failed to
have significant contact with the State of Delaware so
as to be subject to quasi in rem jurisdiction in that state

13

based upon its failure to satisfy the “Minimum Con-
tacts” principle enumerated in International Shoe v.
Washington, 326 U.S. 310, 66 S. Ct. 154, 98 L. Ed. 95
(1945).

In the case at bar the evidence is undisputed that the
Louisville & Nashville Railroad Company owned land
within Jackson County, Mississippi; operated a railroad
through said county, as well as Harrison and Hancock
counties in Mississippi; and had no less than 29 miles of
track in Jackson County, Mississippi; and that the acci-
dent complained of in the subject suit occurred while
operating a train on the same line of track which is in
question and which was the subject of the attachment.
No legitimate argument can be made that the Louis-
ville & Nashville Railroad Company did not have
“Minimum Contacts”, as was the case in Shaffer, supra.
Even under the most restrictive view of International Shoe
Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 98 L. Ed.
95 (1945), the Louisville & Nashville Railroad Com-
pany had subjected itself to the jurisdiction of the
Chancery Court of Jackson County, Mississippi, and
was doing a substantial amount of business in this
jurisdiction. Shaffer, supra, did not hold Delaware’s at-
tachment statutes unconstitutional, per se, but in
effect held that they were violative of the Due Process
Clause of the United States Constitution as applied to
the defendants, based upon their failure to have
“minimum contacts” with the state. It is also apparent
that the Petitioners did not bother to review ihe
procedures authorized under Delaware law in ref-

14

erence to Attachment in Chancery. These statutes are
very dissimilar to those applied under Mississippi's At-
tachment in Chancery.

In the case at bar there has been absolutely noshow-
ing that the Attachment in Chancery statute as ap-
plied in this case denied anyone of any substantial prop-
erty right or caused any deprivation thereof so as to ac-
tivate the Due Process Clause of the Constitution of
the United States.

The property attached in this case constituted real
estate which was located in Jackson County, Missis-
sippi and which had been owned by the Louisville &
Nashville Railroad Company for many years. None of
the cases cited by Petitioners involve real property, but
rather personalty. The right to attach such property of
non-residents has been recognized since Pennoyer v. Neff,
5 Otto 714, 95 U.S. 714, 24 L. Ed. 565, (1877). This
remains the law today.

Two of the justices, Mr. Justice POWELL and Mr.
Justice STEVENS, both of whom concurred in opinion
in Shaffer v. Heitner, 433 U.S. 186, 97 S. Ct. 2569, 2587-
2588, (1977), observed that real property probably

should be handled in a different manner than personal-
ty. Mr. Justice POWELL stated:

I would explicitly reserve judgment, however,
on whether the ownership of some forms of
property whose situs is indisputably and per-

15

manently located within a State may, without
more, provide the contacts necessary to sub-
ject a defendant to jurisdiction within the
State to the extent of the value of the proper-
ty. In the case of real property, in particular,
preservation of the common law concept of
quasi in rem jurisdiction arguably would avoid
the uncertainty of the general International Shoe
standard without significant cost to
“ ‘traditional notions of fair play and substan-
tial justice.’ ” [International Shoe Co. v. Washington,
326 U.S. 310, 316, 66 S. Ct. 154, 158] ...,
quoting Milliken v. Meyer, 311 U.S. 457, 463, 61
S. Ct. 339, 343, 85 L. Ed. 278 (1940). 97S. Ct.
2569, 2587.

Mr. Justice STEVENS, while concurring in the result
in Shaffer, supra, said:

I agree with Mr. Justice POWELL that it
should not be read to invalidate in rem jurisdic-
tion where real estate is involved. 97 S. Ct.
2588.

Petitioners also rely upon the cases of Fuentes v. Shevin,
407 U.S. 67, 92S. Ct. 1983 (1972), and Sniadich v. Family
Finance Corp., 395 U.S. 337, 89 S. Ct. 1820 (1969), as
upholding their position that they were denied
procedural due process. In order to properly evaluate
these cases in view of the case at bar, it is necessary to
look specifically at the facts of each case in reference to

16

its application to the Due Process Clause of the Four-
teenth Amendment. In the Fuentes case, supra, the
Plaintiffs were attempting to repossess property from
Defendants; therefore, there can be no question that
they were being deprived of personal property. This is
not the situation of the case at bar. As pointed out
previously, there was no substantial interference with
the property of the Defendant, Louisville & Nashville
Railroad Company, either personal or real.

In Sniadich v. Family Finance Corp., 395 U.S. 337, 89
S. Ct. 1820 (1969), the petitioner had actually had her
salary garnished and her wages frozen. Again, there
was a substantial interference with a valid property
right. The Court in that case stated

17

dous hardship on wage earners with families
to support. 89 S. Ct. 1822.

The Court went on to say:

The result is that a prejudgment garnishment
of the Wisconsin type may as a practical
matter drive a wage-earning family to the
wall. Where the taking of one’s property is so
obvious, it needs no extended argument to
conclude that absent notice and a prior hear-
ing ... this prejudgment garnishment
procedure violates the fundamental prin-
ciples of due process. 89 S. Ct. 1822, 1823
(1969).

A procedural rule that may satisfy due process
for attachments in general, see McKay v.
McInnes, 279 U.S. 820, 49S. Ct. 344, 73 L. Ed.
975, does not necessarily satisfy procedural
due process in every case. The fact that a
procedure would pass muster under a feudal
regime does not mean it gives necessary
rotection to all property in its modern forms.
We deal here with wages — a specialized type
_/of property presenting distinct problems in
our economic system. We turn then to the
nature of that property and problems of
procedural due process. ;

A prejudgment garnishment of the Wisconsin
type is a taking which may impose tremen-

Again, it should be pointed out that there has been no
substantial deprivation of any property rights of the
Petitioners in the case before the bar.

Petitioners also urge upon the Court the case Missis-
sippi Chemical Corporation v. Chemical Construction Corpora-
tion, 444 F. Supp. 925 (1977), as holding Mississippi's
Chancery Court Attachment Procedures as being
violative of procedural due process. Itshould be pointed
out, however, that the holding of that case was also
limited to the facts before that court. 444 F. Supp. 925,
943-944.

In Mississippi Chemical Corporation v. Chemical Construction
Corporation, supra, the funds attached were not at-

18

tributal to contracts to be performed in the State of
Mississippi or to debts arising in this state; contrarily,
all involved activity outside uf the jurisdiction of the
State of Mississippi. In addition, huge sums of money
owing under the provisions of those contracts were
tied up, and this constituted significant deprivation of a
property right without question — a condition, again,
not applicable to the case at bar.

It is, therefore, respectfully urged that not only do
the Petitioners fail to properly raise any Constitutional
issues in reference to the Due Process Clause of the
United States Constitution, but that it has wholly
failed to show that there has been a deprivation of any
rights as the allegedly “unconstitutional” statutes are
applied toit. It is, therefore, respectfully urged that this
Honorable Court should decline to grant Certiorari
based upon an alleged denial of due process

Certiorari Should Be Denied Because The
Statutes As Applied Do Not Deny Equal
Protection Of The Laws To Petitioners.

Respondent, without re-enumerating the jurisdic-
tional deficiencies of the Petition for a Writ of Cer-
tiorari, again would incorporate its previous authority
in response to whether Certiorari should be granted to
consider whether or not Mississippi's Attachment in
Chancery as applied to the Petitioners constituted a
denial of equal protection of the laws.

19

In construing the Equal Protection Clause of the
Fourteenth Amendment of the United States Con-
stitution, this Court has traditionally held that the
rational basis standard of equal protection analysis is a
relatively relaxed standard reflecting the Court's
awareness that the drawing of lines that create a dis-
tinction is peculiarly a legislative test and an un-
avoidable one, and that under such standards perfec-
tion is not necessary and such classifications are
presumed valid. Massachusetts Board of Retirement v. Murgia,
427 U.S. 307, 96 S. Ct. 2562, 49 L. Ed.2d 520 (1976).
The only exception to this rule is when a suspect
category, such as Civil is involved and then a higher
standard is required in order to uphold statutes which
create a distinction in classifications. It is, therefore,
respectfully urged that if there is a reasonable basis to
distinguish the Attachment in Chancery statute as ap-
plied to Louisville & Nashville Railroad Company, that
such a statute should not be overthrown on the basis of
violating the Equal Protection Clause of the United
States Constitution. Section 11-31-1, Mississippi Code
of 1972, Annotated (17a of Petitioners’ Brief) applies an
Attachment in Chancery jurisdiction to “any non-
resident, absent or absconding debtor who has lands

a”

and tenements within this state. . .”.

Therefore, the question is whether a non-resident
domesticated corporation should be treated differently
from a corporation organized and existing under the
laws of the State of Mississippi. It should be noted that
§11-31-1, Mississippi Code of 1972, Annotated,

20

provides this remedy against any non-resident, absent
or absconding debtor; these three categories were ob-
viously designated because the legislature was of the
opinion that the citizens of the State of Mississippi
should be given additional protection against these par-
ticular classes for the reason that they had less substan-
tial contacts within the state or were attempting to
avoid the jurisdiction of the courts of this state to settle
a dispute.

There can be no question that the non-resident
provision or class would be applied with equality
toward a corporation and toward an individual. Of
course, this statute would be subject to there being suf-
ficient minimal contacts as recognized in Shaffer v.
Heitner, 433 U.S. 186, 97S. Ct. 2569 (1977). Therefore,
the sole question is whether or not the legislature of
the State of Mississippi, in order to protect its citizens,
may provide a remedy to be exercised against non-
residents which is different from the remedy which
would be exercised against resident citizens without
offending the F:jual Protection Clause of the United
States Constitution. In other words, is there a rational
basis to distinguish non-resident domesticated cor-
porations (such as your Petitioners herein) and
domestic corporations?

In Southern Motor Express Co. v. Magee Truck Lines, Inc.,
177 So. 653 (1937), the appellant attempted to argue
that a non-resident domesticated corporation should
be treated identically with a domestic corporation for

21
purposes of the attachment statute. The Court, reject-
ing that argument, observed:

Whatever may be the full import of the
domestication statutes, we think it may be
safely said that they do not operate to make
two separate and distinct corporations. The
foreign corporation domesticated here still
remains one corporation, and it must,
therefore, have its domiciliary residence in
one state and not in both. Thus, it seems the
more reasonable to ascribe that residence to
the original state which above others has
visitorial and supervisory powers over it as well as the
final authority to dissolve it. [Emp. ours].

The Court went on to observe that:

Under the ruling of the Supreme Court of the
United States in Southern Ry. Co. v. Allison, 190
U.S. 326, 23 S. Ct. 713, 47 L. Ed. 1078, ....
that a domesticated foreign corporation may
remove to the federal court an action brought
in the state of the domestication on the
ground that it is a resident of the state of its
original incorporation. 177 So. 653 (1937).

In Southern Motor Express Co., supra, the Court went onto
hold that to allow a domesticated corporation to claim,
it should be treated identically with a domestic corpora-
tion would permit a removal by the domesticated cor-

22

poration in a suit brought in excess of the juris-
dictiona] amount for diversity and would allow, on
the other hand, a suit brought for alesser amount to be
dismissed on the basis that the attachment of a resident
would not lie. Therefore, the issue is whether or not
the visitorial, supervisory, and the final authority to
dissolve a corporation can constitute a reasonable basis
of distinction so as to not breach the Equal Protection
Clause of the Fourteenth Amendment of the United
States Constitution.

It is respectfully submitted that such a distinction is
not only permissible but has a valid basis in the case
presently before the Court, in that the purpose of the
Attachment in Chancery Statutes in Mississippi was to
give citizens of this state additional protection from
non-resident corporations where the State of Missis-
sippi has no visitorial and supervisory powers over it. It
is respectfully urged that such a distinction has a
rational basis and, therefore, does not infringe on the
Equal Protection Clause of the Fourteenth Amend-
ment of the United States Constitution.

Certiorari Should Be Denied Because
There Is No Constitutional Right To A Jury
Trial In A Civil Suit In A State Court In Mis-
sissippi In Instances Such As This, Nor Under
The Seventh Amendment Of The United
States Constitution.

ea.

EE Bee me

23

The Supreme Court of Mississippi in its opinion in
this case, Louisville & Nashville Railroad Co., et al v. Rheeta
Hasty, 360 So. 2d 925 (1978), adequately stated the
prevailing state law in that regard. The Court stated:

Appellant next contends that its constitu-
tional right to a jury trial was violated by the
Chancery Court in taking jurisdiction of this
case. However, this issue has previously been
decided adversely to Appellant and the
appellant has not advanced any arguments
which would persuade us to overrule those
cases. See Illinois Central Railroad Co. v. McDaniel,
246 Miss. 600, 151 So. 2d 805(1963); Matthews
v. Thompson, 231 Miss. 258, 95 So. 2d 438
(1957); Talbot & Higgins Lumber Company v.
McLeod Lumber Co., 147 Miss. 186, 113 So. 433
(1927).

Petitioners’ further contention that the taking of
jurisdiction by the Chancery Court of Jackson County,
Mississippi, denied it due process is alsocontrary to the
prior holdings of this Court which do not apply the
Seventh Amendment of the Constitution to state court
proceedings. In the case Olesen v. Trust Company of Chicago,
245 F. 2d 522 (7th Cir. 1957), the Court sustained a
Motion to Dismiss based on the fact that there was no
federal question when appellant attempted to raise
constitutional grounds that she had been denied aright
to a jury trial as guaranteed under the Seventh Amend-
ment of the United States Constitution. The Court
held:

24

It is clear there is no federal question involved
in the case at bar. The Seventh Amendment of
the United States Constitution applies to
trials in the United States courts. Citing Bute v.
Pecple of State of Illinois, 333 U.S. 640, 657 (foot-
note), 68 S. Ct. 763, 92 L. Ed. 986.

Trial by jury in civil actions in state courts may
be modified by a state or abolished altogether.
Walker v. Sauvinet, 92 U.S. 90, 23 L. Ed. 678;
Maxwell v. Dow, 176 U.S. 581, 20S. Ct. 494, 44
L. Ed. 597; New York Central Railroad Company
v. White, 243 U.S. 188, 208, 37 S. Ct. 247, 61
L. Ed. 667; Wagner Electric Manufacturing Com-
pany v. Lyndon, 262 U.S. 226, 232,435. Ct. 589,
67 L. Ed. 961.

A denial of trial by jury in a state court is nota
denial of due process of law under the Four-
teenth Amendment. “The Fourteenth
Amendment neither implies that all trials
must be by jury, nor guarantees any particular
form or method of state procedure.” Hardware
Dealers’ Mutual Fire Insurance Company of Wisconsin
v. Glidden Co., 284 U.S. 151, 158, 52 S. Ct. 69,
71, 76 L. Ed. 214.

Olesen v. Trust Company of Chicago, 245 F. 2d 522
(7th Cir. 1957).

It is also likewise contrary to Petitioners’ contention
that the denial of a jury trial violated the Equal Protec-
tion Clause since it is clear that others similarly

situated to which the Attachment in Chancery Statute

25
would be applicable could likewise be denied trial by
jury in the state proceedings.

CONCLUSION

Respondent, therefore, respectfully contends that
the Petitioners herein have wholly failed to raise
constitutional questions in reference to denial of due
process and equal protection under the facts in this case
and, further, have wholly failed to substantiate their
claim that this petition requesting certiorari should be
granted since there has been no denial of their rights or
equal protection and due process as the Attachment
statute has been applied. It is, therefore, respectfully
submitted that this petition should be denied.

Respectfully submitted,

JOHN L. HUNTER

Attorney for RHEETA HAS-
TY, a Minor, by and Through
her Mother and Next Friend,
MRS. FAYE HASTY,
RESPONDENT

CUMBEST AND CUMBEST, P.A.
Attorneys for Respondent

Post Office Drawer 1287
Pascagoula, Mississippi 39567

Telephone: (601) 762-5422

26
CERTIFICATE OF SERVICE

Il, JOHN L. HUNTER, attorney of record for the
Respondent, Rheeta Hasty, a Minor, by and through
her Mother and Next Friend, Mrs. Faye Hasty, do
hereby certify that I have mailed this day, by United
States mail, postage prepaid, three (3) true and correct
copies of the foregoing printed Reply Brief to Petition
for A Writ of Certiorari to the Supreme Court of Mis-
sissippi to Honorable Raymond L. Brown, attorney of
record for Petitioners, addressed to his usual business
mailing address of: Megehee, Brown & Williams, P.A.,
Post Office Box 787, Pascagoula, Mississippi 39567.

THIS, the ___ day of November, 1978.

JOHN L. HUNTER

PAD et

ee ed ee 6 OE RT Dee EO Ke

la
APPENDIX

IN THE CHANCERY COURT
STATE OF MISSISSIPPI
COUNTY OF JACKSON

NO. 26,697

RHEETA HASTY, a Minor, By and Through Her
Mother and Next Friend, Mrs. Faye Hasty,
Complainant,

versus

LOUISVILLE & NASHVILLE RAILROAD COM-
PANY, a Kentucky Corporation, STEVE HAVARD,
Individually and as Agent for Louisville & Nashville
Railroad Company, and W. J; McRANEY, Station
Agent for Louisville & Nashville Railroad Company,
Defendants.

MOTION TO QUASH PROCESS AND
ATTEMPTED ATTACHMENT AND DISMISS BILL
FOR WANT OF JURISDICTION

Now come the Louisville & Nashville Railroad Com-
pany, Steve Havard and W. J. McRaney, acting by and
through their attorneys, and make a_ special
appearance, solely for the purpose of this motion and
limited thereto, and move this Honorable Court to

2a

Quash Process in this attempted attachment proceed-
ing and dismiss the Bill for want of jurisdiction, and in
support thereof would show unto the Court as follows,
to-wit:

I.

That the Defendant, Louisville & Nashville Railroad
Company owns and maintains property in Jackson
County, Mississippi, valued in excess of the amount
sued for in the Bill of Complaint.

II.

That the Defendant, Louisville & Nashville Railroad
Company, is qualified to do business in the State of
Mississippi and has a registered agent for service of
process in the State of Mississippi, as well as a local
agent in charge of the Pascagoula, Mississippi office,
either of whom may receive process which would lead
to a valid in personam judgment against the Defendant if
a judgment were obtained.

III.

That the Defendant, the Louisville & Nashville
Railroad Company, is not an absent or absconding
debtor, nor are the other defendants, nor are they al-
leged to be; the only allegation being that the defendant
is a non-resident but, as stated in Paragraph II above,
the Louisville & Nashviiie Railroad Company has

3a

become domesticated, and the other individual defen-
dants can be served in the Circuit Court under proper
statutes of the State of Mississippi.

IV.

That the Defendants are entitled to a jury trial ona
personal injury claim in tort for unliquidated damages,
and the procedure sought by the Complainant would
deny such jury trial.

7

That only the Louisville and Nashville Railroad Com-
pany and two of its employees are defendants in this
suit, and no other person or party who holds property
or assets or owes a debt to any of the defendants is
named a party to this suit.

VI.

That the Chancery Court lacks jurisdiction in this
matter for the foregoing reasons.

Respectfully submitted,

LOUISVILLE & NASHVILLE
RAILROAD COMPANY,
STEVE HAVARD and W. J.
McRANEY
BY: MEGEHEE, BROWN,
WILLIAMS & CORLEW
ls) RAYMOND L. BROWN
RAYMOND L. BROWN

4a

MEGEHEE, BROWN, WILLIAMS & CORLEW
Post Office Box 787

Pascagoula, Mississippi 39567

Phone: (601) 762-2271

STATE OF MISSISSIPPI
COUNTY OF JACKSON

Personally appeared before me, the undersigned
authority in and for saidcounty and state, RAYMOND
L. BROWN, who stated to me on oath that he is At-
torney of Record for the Defendants, Louisville &
Nashville Railroad Company, Steve Havard and W. J.
McRaney, that he is informed and believes that the
matters and things alleged in this motion are true and
correct as therein stated.

is) RAYMOND L. BROWN
RAYMOND L. BROWN

Sworn to and subscribed before me, this the 24th day
of July, 1974.

ls) SAMMY M. BERNARD
NOTARY PUBLIC

Trae oe ee eee see oe Vey e

5a

CERTIFICATE

I, RAYMOND L. BROWN, Attorney of Record for
the Defendants in the foregoing cause of action, do
hereby certify that I have this date mailed by U. S. Mail,
postage prepaid, a true and correct copy of the forego-
ing Motion to the Attorney of Record for the Plaintirf,
John Hunter, Esquire, at his regular post office address,
which is Post Office Box 1287, Pascagoula, Mississippi
39567.

This the 24th day of July, 1974.

is) RAYMOND L. BROWN
RAYMOND L. BROWN

STIPULATION
(Number and Title Omitted)

It is hereby agreed by and between counsel that the
Motion to Quash Process and Attempted Attachment
and Dismiss Bill for Want of Jurisdiction may be ruled
upon by the Court upon stipulated facts hereby
submitted and approved by counsel for Complainant.

That the parties stipulate the following facts, to-wit:

6a
I.

That the Defendant, the Louisville & Nashville
Railroad Company, owns more than 24 miles of right-
of-way and more than 29 miles of track in Jackson
County, Mississippi.

II.

That the Defendant, the Louisville & Nashville
Railroad Company, owns real property other than that
within its right-of-way and owns numerous items of
personal property in Jackson County, Mississippi.

III.

That the foregoing property is of a value in excess of
the damages claimed in this suit.

IV.

That the Louisville and Nashville Railroad Company
is a foreign corporation qualified to do business in the
State of Mississippi, witha registered agent for process
appointed and with a local agent in charge of the
Pascagoula, Jackson County, Mississippi, depot.

Respectfully submitted,

LOUISVILLE & NASHVILLE
RAILROAD COMPANY,
STEVE HAVARD and
W. J. McRANEY
BY: MEGEHEE, BROWN,
WILLIAMS & CORLEW
ls) RAYMOND L. BROWN

7a

MEGEHEE, BROWN, WILLIAMS & CORLEW
Post Office Box 787

Pascagoula, Mississippi 39567

Phone: (601) 762-2271

AGREED STIPULATION:
ls) JOHN L. HUNTER

John Hunter,
Attorney for Plaintiff

MOTION TO DISMISS
(Number and Title Omitted)
Filed: Jul. 31, 1974

Now come the Defendants, LOUISVILLE &
NASHVILLE RAILROAD, STEVE HAVARD and W. J.
McRANEY, and move this Court for dismissal of the
above styled and numbered cause for the following
reasons, to-wit:

That to proceed with this matter in Chancery Court
of Jackson County, Mississippi, when all of these
Defendants are properly subject to process in the Cir-
cuit Court of Jackson County, Mississippi, would be a
denial of the right of trial by jury in violation of Amend-
ment VII of the Constitution of the United States and

8a

in violation of Amendments V and XIV of the Constitu-
tion of the United States.

That to proceed with this matter in Chancery Court
of Jackson County, Mississippi, when all of these
Defendants are properly subject to process in the Cir-
cuit Court of Jackson County, Mississippi, would be a
denial of the right of trial by jury in violation of Article
3, Section 31 of the Constitution of the State of Mis-
sissippi and Article 3, Section 14 of the Constitution of
the State of Mississippi.

Respectfully submitted,

LOUISVILLE & NASHVILLE
RAILROAD COMPANY,
STEVE HAVARD and W. J.
McRANEY
BY: MEGEHEE, BROWN,

WILLIAMS & CORLEW

ls) RAYMOND L. BROWN
RAYMOND L. BROWN

STATE OF MISSISSIPPI
COUNTY OF JACKSON

Personally appeared before me, the undersigned
authority in and for said county and state, RAYMOND
L. BROWN, who stated to me on oath that he is At-
torney of Record for the Defendants, Louisville &
Nashville Railroad Company, Steve Havard and W. J.
McRaney, that he is informed and believes that the

9a

matters and things alleged in this motion are true and
correct as therein stated.

Is) RAYMOND L. BROWN
RAYMOND L. BROWN

Sworn to and subscribed before me, this the 31st day
of July, 1974.

Is) MARILYN B. GUARDIA
NOTARY PUBLIC

RAYMOND L. BROWN

MEGEHEE, BROWN, WILLIAMS & CORLEW
Post Office Box 787

Pascagoula, Mississippi 39567

CERTIFICATE

I, RAYMOND L. BROWN, Attorney of Record for
the Defendants in the foregoing cause of action, do
hereby certify that I have this date personally delivered
a true and correct copy of the foregoing Motion to the
Attorney of Record for the Plaintiff, John Hunter, Es-
quire, at his offices at 707 Watts Avenue, Pascagoula,
Mississippi 39567.

This the 31st day of July, 1974.

ls) RAYMOND L. BROWN
RAYMOND L. BROWN

SSS ET

10a
ANSWER TO BILL OF ATTACHMENT

(Number and Title Omitted)
Filed: Jul. 31, 1974

TO THE HONORABLE CHANCERY COURT OF
JACKSON COUNTY, MISSISSIPPI:

‘Now come the Defendant, the Louisville & Nashville
Railroad Company, Steve Havard, and W. J. McRaney,
and in answer to the bill of attachment filed against
them in this cause, would state and show unto the
Court as follows, to-wit:

2.

Defendants admit the allegations of paragraph 1.

2.

Defendants admit the allegations of paragraph 2,
and, further answering, say that the Defendant,
Louisville & Nashville Railroad Company, is qualified
to do business in the State of Mississippi and is in fact
doing business in the State of Mississippi.

3.

Defendants admit that the Defendant, Louisville &
Nashville Railroad Company, owns the property
described in paragraph 3, but denies that the property
described, or any of same, is under the care, custody

lla

and control of W. J. McRaney, the said W. J. Mc Raney
being an employee of the Louisville & Nashville
Railroad Company, and said property being in the
custody of the Louisville & Nashville Railroad Com-
pany, the said W. J. McRaney having no authority
whatsoever to sell, lease, dispose of, or in any way deal
with said property, except, as is the case with all
employees, to protect railroad property from loss or
damage.

4.

Defendants admit the allegations of ownership in
paragraph 4, admit that the property of the railroad is
subject to attachment in order to satisfy a valid judg-
ment rendered against any or all of the Defendants, but
denies that this Court, under the circumstances of this
case, has jurisdiction to attach any of these Defendants,
or their property, for purposes of acquiring jurisdiction
herein.

3.

The Defendants admit the allegations as to the date
and place of the accident complained of, but would deny
the other allegations of paragraph 5.

6.

Defendants deny the allegations of paragraph 6, and
more specifically denying that said crossing was hazar-
dous and dangerous and that the Defendant or its
operators were required to approach said crossing with
the exercise of extreme caution and care.

12a

7.
Defendants deny the allegations of paragraph 7.

8.
Defendants deny the allegations of paragraph 8.

9.
Defendants deny the allegations of paragraph 9.

10.
Defendants deny the allegations of paragraph 10.

)

Defendants deny the allegations of negligence in
paragraph 11, and, as to the injuries, these Defendants
are without knowledge or information upon which to
base an admission or denial of the various allegations,
and, therefore, deny same and demand strict proof
thereof.

12.
Defendants deny the allegations of paragraph 12.

13.

Defendants deny that an attachment of the proper-
ty of any of these Defendants will lie in this cause and
deny that writs of garnishment and attachment should
issue herein; Defendants deny that judgment should be
granted against any of these Defendants in any amount

13a

whatsoever, and deny that the Plaintiff is entitled to
any relief whatsoever from these Defendants in this
cause.

AFFIRMATIVE DEFENSES

I.

And now, having fully answered the Bill of Attach-
ment filed against them in this cause, the Defendants
give notice that they intend to prove that the sole,
proximate cause of the accident and injuries complain-
ed of was the negligence of the driver of the vehicle in
which the Plaintiff, Rheeta Hasty, was riding as a
passenger.

He

That said negligence consisted of the following acts
or omissions, to-wit:

A. Failure to stop, look and listen before
proceeding upon the tracks as required by law.

B. Failure to keep a reasonable and proper
lookout.

C. Failure to heed and obey acity stop sign at
or near the crossing.

D. Failure to heed or obey a railroad stop
sign at or near the crossing.

E. Failure to heed warnings emitted by the
train.

l4a

F. Failure to exercise reasonable care and
caution.

And now, having fully answered the Bill of Attach-
ment filed herein, and having set forth Affirmative
Defenses, the Defendants move to be dismissed with
their reasonable costs expended.

Respectfully submitted,

LOUISVILLE & NASHVILLE
RAILROAD COMPANY,
STEVE HAVARD and W. J.
McRANEY
BY: MEGEHEE, BROWN,

WILLIAMS & CORLEW

is) RAYMOND L. BROWN
RAYMOND L. BROWN

STATE OF MISSISSIPPI
COUNTY OF JACKSON

Personally appeared before me, the undersigned
authority in and for saidcounty and state, RAYMOND
L. BROWN, who stated to me on oath that he is At-
torney of Record for the Defendants, Louisville &
Nashville Railroad Company, Steve Havard and W. J.
McRaney, and that he signed the above and foregoing
Answer for and on behalf of said Defendants as their
attorney, and that said Answer and the allegations con-
tained therein are true and correct as therein stated ac-

15a

cording to information and belief of the said Raymond
L. Brown.

ls) RAYMOND L. BROWN
RAYMOND L. BROWN

Sworn to and subscribed before me this the 31st day
of July, 1974.

Is) MARILYN B. GUARDIA
NOTARY PUBLIC

RAYMOND L. BROWN

MEGEHEE, BROWN, WILLIAMS & CORLEW
Post Office Box 787

Pascagoula, Mississippi 39567

CERTIFICATE

I, RAYMCND L. BROWN, Attorney of Record for
the Defendants in the foregoing cause of action, do
hereby certify that I have this date personally delivered
a true and correct copy of the foregoing Answer to the
Attorney of Record for the Plaintiff, John Hunter, Es-
quire, at his offices at 707 Watts Avenue, Pascagoula,
Mississippi 39567.

This the 31st day of July, 1974.

ls) RAYMOND L. BROWN
RAYMOND L. BROWN

16a
ORDER
(Number and Title Omitted)
Filed: Aug. 6, 1974

There coming on to be heard this day the motion of
the Defendants, the Louisville and Nashville Railroad
Company, Steve Havard and W. J. McRaney, for dis-
missal on the ground that a trial in Chancery Court
without jury by way of attachment in this cause is in
violation of Amendments V and XIV and Amendment
VII of the United States Constitution and Article 3,
Section 31 and Article 3, Section 14 of the Constitution
of the State of Mississippi and the Court, being fully
advised in the premises, finds that the motion should
be, and is hereby overruled.

ORDERED this the 6th day of August, 1974.

is) KENNETH B. ROBERTSON
CHANCELLOR

17a

MOTION FOR RE-HEARING
OR NEW TRIAL

(Number and Title Omitted)
Filed: Feb. 23, 1976

NOW COME the Defendants, the LOUISVILLE &
NASHVILLE RAILROAD COMPANY and STEVE
HAVARD, acting by and through their attorneys, and
move this Honorable Court for re-hearing or a new
trial, and in support thereof would show unto the
Court as follows, to-wit:

I.

That the Court erred in overruling Motion of Defen-
dants for dismissal for lack of jurisdiction in the
Chancery Court.

Il.

That the Court erred in overruling Motion for dis-
missal based on lack of the necessary grounds for an at-
tachment in Chancery.

III.

That the Court erred in overruling Motion for dis-
missal on the grounds that the Plaintiff has an adequate
remedy at law.

18a

IV.

That the Court erred in overruling Motion of Defen-
dants for a Jury trial in Chancery, after the Court had
ruled that it would take jurisdiction of the matter in
Chancery Court.

V.

That in denying the Defendants their right to be
sued in the Circuit Court and in denying Jury trial, the
Court was in error and violated the right of these
Defendants under Amendment VII of the Constitution
of the United States and Amendment V and Amend-
ment XIV of the Constitution of the United States; that
such denial also violated the rights of these Defendants
under Article III, Section 31 of the Constitution of the
State of Mississippi and Article III, Section 14 of the
Constitution of the State of Mississippi.

VI.

That the Opinion of the Court and the Decree of
Judgment based thereon are contrary to the
overwhelming weight of the evidence.

VI.

That the amount of the Judgment is excessive and
cannot be cured by remittitur, but these Defendants
contend that if rehearing or new trial is not granted, a
remittitur should be granted.

19a

VIIL.

That in arguments on the Motions made in this
cause, the Court and counsel discussed and argued at
length the issue of whether the Chancery Court has
jurisdiction of this matter, in any event, because it in-
volves a claim of a minor, and the Chancery Court, by
statute, has jurisdiction in matters involving minors. It
is assumed, therefore, that part, if not all, of the basis
for the ruling by the Court taking jurisdiction of this
matter is based upon the fact that it is a minor’s claim,
and, therefore, the Defendants contend that it was
error for the Court to take jurisdiction of this cause on
said basis.

Respectfully submitted,

LOUISVILLE & NASHVILLE
RAILROAD COMPANY and
STEVE HAVARD

BY: MEGEHEE, BROWN &
WILLIAMS

is) Raymond L. Brown
RAYMOND L. BROWN

20a
CERTIFICATE

f RAYMOND L. BROWN, attorney of record for
the Defendants, Louisville & Nashville Railroad Com-
pany and Steve Havard, do hereby certify that I have
this day mailed by United States Mail, postage prepaid,
a true and correct copy of the foregoing Motion for Re-
hearing or New Trial to John L. Hunter, attorney of
record for the Complainant, at his usual business ad-
dress of Post Office Box 1287, Pascagoula, Mississippi
39567.

THIS, the 23rd day of February, 1976.

ls} Raymond L. Brown
RAYMOND L. BROWN

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1866%3A2. Public record. Not legal advice.