# Reply Brief Petitioner — Dillard v. Jackson's Atlanta Ready Mix Concrete Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0547%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief Petitioner - **Published:** January 1, 1962 - **Citation:** 371 U.S. 902 ## Text = Office-Supreme Court, U.S. FILED ocr 22 1962 md Phy JOHN F. DAVIS, CLERK SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1962 NO. 389 MRS. AGNES JUNE DILLARD, Petitioner US. JACKSON'S ATLANTA READY MIX CONCRETE -- COMPANY, INC... | Defendant, d fr ‘Petitio Writ of Certiorari to the Court of Appeals of Georgia © G. SEALS AIKEN, ‘ Attorney for Petitioner, Suite 1409-10 Candler Bldg., Atlanta 3, Georgia : * Cuartes W. BERGMAN, Of Counsel. ' “t SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1962 NO. 389 MRS. AGNES’ JUNE DILLARD, ; : Petitioner vs. | 3 _JACKSON’S ATLANTA READY MIX CONCRETE — Ax | COMPANY, INC. Defendant REPLY BRIEF OF PETITIONER FOR CERTIORARI Now comes Mrs. Agnes June Di!lard, Petitioner for Cer- — tiorari, and shows to the Court, in response to the reply brief of Respondent, the following: - ’- Respondent's principal contention is that the constitutional question was not reasonably raised. :Is it not clear from. the . facts and circumstances preserited in the petition for certior- ari that the constitutional question was reasonably raised? Does the exercise of prudenct and reasonableness require’ anticipation that the State Court of,Appeals would fail to _. adhere, as it did in this case, to the well recognized and bind- _ a are : ‘ ing prior decisions of that Court as well as the Supreme Court of Georgia as to-the efficacy of judgments against a-person or party (natural or artificial) using acfictitious oF trade name? Must a party litigant assume that the State Appellate Court — - will evade application of such prior and binding decisions by holding the evidence presented a question of fact for the jury to deterntine, whereas the verdict was unsurported by any competent evidence and was contrary to the solemn admis- sions in‘judicio of the Respondent? me s On page 8. of the appendix will be ‘found the following - cratement by the Court of Appeals: “Boiled down, there was nothing more than a factual question to be resolved by the jury as to whether Jackson’s Atlanta Ready Mix Concrete Company. Inc. did or did not have an assumed or trade name, and. WHETHER IT WAS ONE AND THE SAME AS THE DEFENDANT IN Fl. FA. THE EVIDENCE ON THAT ISSUE WAS IN CONFLICT, and the jury resolved it in favor of the claimant and against the plaintiff.” (Empha- . - sis supplied). Was the evidence ov the issue bf identy in conflict? Noth- ing is or ‘could be more at ‘variance with the actual facts. ce Examples: 1!2 The introductory, paragraph of one of -the » . traverses reads: “Now comes Jackson's Atlanta Ready Mix Concrete Company, Inc., one of the defendants in said mat- ter, and at ‘the first term of said court after notice to him of service purporting to show him legally served. in Fulton County, Georgia end traverses saine***, This defendant was © never legally served through any officer or agent as by law provided.***” On dismissal of said traverse by the same at- torneys’it wa§ stipulated: “Jackson’s Atlanta Ready Mix - Concerete Company after levy made, HAVING FILED A _.THIRD PARTY:CLAIM IN THE WITHIN MATTER, cs : ‘the above traverse is hereby withdrawn and dismissed.” (Capitals added) ..2. In a proceeding to act aside.and vacate - petitioner's judgment (which was never withdra n), Res-_ pondent Jackson’s Atlanta Ready Mix Concrete Company, Inc. EXPRESSLY DESIGNATED ITSELF SEVEN TIMES AS. THE DEFENDANT. (R.58). 3. The copy of the complaint and process served upon its employee, E. H. | Lambert, was produced and in court on the trial of the claim case and by. stipulation was admitted as having beeitserved. (R.47-8 and 54). 4. Plaintiff's exhibit number 4, being page 271 of the Alphabetical Section of the Telephone Directory, showed the’ listing: “JACKSON READY MIX CON- -CRETE CO. INC. 1000 SEABD NE JA 5-2158". Another _ page of said directory-shaws “JACKSON'S READY MIX “CONCRETE” on a picture of a cement mixing: truck, These are but four examples of evidence in the record showing that the Respondent is the same entity or party as Jackson Rowdy Mix Concrete Co. Inc., the Defendant in Fi. Fa. In STATE OF MISSOURI, EX REL. MISSOURI IN- SURANCE GO. V. GEHNER, EXC., 281° U.S. 313, 50 S. __-Ct. 326, this court held: “it may not be reasonably held that _ .the (Insurance) Company was bound to anticipate such a - construction or in advance to invoke Federal protection against the taxation of its United States bonds. Upon the facts disclosed by the record it is clear that appellant sufficiently ° raised in the highest court Gf the Siate the Federal questions here presented, and is entitled to have them considered.” (Emphasis added ).. . Very. shortly thereafter, in BRINKERHOFF- FARIS TRUST & SAVINGS CO. V. HILL, ETC., 281 U.S. 673, 50 S. Ct. 451, “On petition for rehearing in State Supreme Court, plaintiff asserted that in applying a new construction > Sd ? of: state statute, antin refusing relief. because of newly found powers of State ‘Tax Commission, the court trans- —gressed the due process clause of the Fourteenili Amend- ment,” and this court reversed “the judgment of the Supreme - Court 6f Missouri .. . because it “denied to the plaintiff “due ~ process of Jaw’ — using that.term in its primary serse of an _ opportunity to be lieard and to defend its substantive righ . SZ STtisa necessary and well settied rule that the exercise of jurisdiction by this court to protect constitutional rights can- not be declined when it is plain that the. fair -result of a ‘decision is to deny. the rights.” Dan Rogers v. Ala., 192 U.S. | 220, 24 S. Ct. 257. . er an : In view of the decisions of this court in, the three cases -cited next-above, it Would appear that Petitioner in this ca was not bound to anticipate that the Court of Appeals. of Georgia would fail to follow its prior and well established decisions that a judgement against a person (natural or artificial) in his. or its assumed or trade name is valid and .. , binding, and that such a person is,a party to.the judgment, and is not entitled tovfile a claim to property levied upon to satisfy the the judgment, as_jvell as prior decisions of the | Supreme Court of Georgia to the same effect, and that Pe- titioher could thereforé inyoké-protection of the due process and équal protection of the law clause of the Fourteenth Amendment upon motion for rehearing as made upon its failure to follow: its:prior binding decisions and those of the.- - -. Supreme Court of Georgia on said point. The Court of . Appeals of Georgia in ice i v. Truitt, 39, Ga. App. 286, 146 S.E. 654, and the Supr¢me Court of Georgia in Becker v. Truitt, 170 Ga. 757, 154 S.E. 262, had held that where process had been served on “City Coal and Grading Co.”, and default judgment ty ae against it upon its failure. c os “ b »7 - \s | SS to. answer, Charles L. Truitt, sole‘ owner and proprietor | of City Coal & &Grading Co., was precluded from interposing | a claim for the Property levied upon on the ground that he - Ng ~ was not the party against whom the judgment was rendered. As’stated in the Petition for Certiorari, the uniform de-_ cisions of the Court of Appeals and the Supreme Court of - Georgia, including Becker vs. “Truitt, 39 Ga. App. 286, 146 §.E: 654; Becker vs. Truitt, 170 Ga. 757, 154 S.E. 262; Executive Committee of the Baptist Convention of Ga. vs. - Smith, 44 Ga. App. 184, 161 S.E. 143; Eslinger.vs» Herndon, 158, Ga: $23, 124 S.E. 169; and Smith vs, Hartrampf, 105 Ga. App. 40, 123: S.E. 2nd 417, hold that-a judgment ren- dered against a person (natural or artificial ) in his or its _ assumed or trade name is not void ‘but valid and binding, | and that such a person is a party to the judgment and is not _ "entitled to file a claim to the property levied upon to Satisfy - the judgment and execution based thereon. The facts in the. two Becke basis ar very similar to the facts in the present . case. Respondent argues s that the case of Williams vs. State of Georgia; 349 U. S. 375, 75 S. Ct. 814, cited on behalf of Petitioner, i is NOT a case in which the éonstitutional qeustion was rais@d-on review “but one in which it was raised in the extraor _ trial ¢ ” Mr. Justice Frankfurter’s statement of the Wil- liams tase indades the following: “While this court’s de- cision in the Avery case was thus rendered over two montis after Williams’ trial, it came'a month before the amendment - to his formal motion for new trial. Yet Williams’ counsel did not rely upon the ground raised by the Avery decision until. six: months later in his extraordinary motion 1 for new * trial. “a ary motion fora new trial and was ruled on by the. - o@ t -F e *, ‘ ‘ _ ~: ’ . * With ine regard to the circumstances of ‘the Williams " case, it is nev erthgless suSittted that if it is not unreasonable to assert a constitutional grourtd on an extraordinary motion for a new trial, MADE AFTER AN AFFIRMANCE BY- | ‘THE. APPELLATE COURT of a judgment of the trial ‘court, then it is not unreasonable to assert a constitutional ground upon petitien for rehearing after an affirmance by. . the appellage court of the ‘judgment of the trial court, the effect of affirmance by the appellate court of, the judgment of the trial cnn to deprive petitioner ‘of due process - of law and equal proteation of the law guaranteed by both _ the State and Federal Constitutions. In the case of Patterson Vs. State of Ala., 294 U.S. 600, 55 S. Gt. 575, this court gr anted contin! and reversed the _, Supreme ‘Court of Alabama where the State contended the | "US. Supreme Court lacked jurisdiction because the State . Court’s judgment rested entirely on question of State appel- late procedure, and held that it was required to examine . | : record to determine w hether judgment was based: on ade-" quate nen-federal ground. In the case of Norris vs. Ala., 294 U. S. 587, 55 S. 6.5 579, is __ this court held that where a federal right i is specially claimed | in a, Staté court, the U. S. Supreme: Court must inquire .'- Av hether right was denied, hot. merely in express terms, but | also i in substance and effect, and, if necessary, evidence must be examined. : In the case of Herndon. vs. Lowry, Sheriff, 301 vU. <. 242, ee S. Ct. 732, this. court reversed the Supreme Court of me Georgia in 182 Ga. 582, 186°S.E. 429, where the federal constitutional question Was‘ raised .i in a habeas corpus pro- - ceeding after Herndon’s conviction by a jury in Fulton - ‘Superior Court had been approved by said court, and af-. Come oe . 7 ee firmed by the Supreme Court of Georgia and this court. The contention of respondent ‘that the constitutional ques- iion in this case was abandoned before petitioner cong rl her quest through , the state courts is entirely incorféct. As "pointed out on page 6 of the petition for certiorari, petitioner duly filed a petition with the Supreme Court of Georgia for fe writ of certiorari to rewiew,- correct, and reverse the erron- cous decision of the Court of. Appeals upon: the,same grounds urged if plaintiff's motion for rehearing in the latter court —. (R.104). It wasdenied (R: 105). Petitioner also filed: in. the Supreme Court-of ‘Georgia a motion for reconsideration of-the denial-of her petition: for certiorari to the Court of Appeals, which was likewise dered. as per certificate of the clerk of the former. Petitioner urged at every step the federal constitutional ground: raised in her petition for rehearing | in the — of Appeals of G seorgia. 3 ee T he statement of | Respondent that the jadgident’ com- plained of was approved by nine Court of “Appeals Judges i is. incorrect. Petitioner duly made a motion to Hon. Jule W. Felton, Chief Judge of the Court of Appeals’ ‘of Georgia for, a rehearing of her case before the’full court of nine. judges © of said -court pursuant to Ga. C ‘Ann. Sec. 24-3501 (Pocket: Parts). That code section declares its purpose is “to. . avoid and reconcile conflicts among the decisiofis of the three . divisions and to secure more authoritative decisions” and ; provides for a decision by the full court of nine judges ull auder certain conditions therein. specified to prevent such conflicts. As poirited out’ in petitioner’s motion for rehearing in the. ‘ peals and in her motion fora” rehearing, by the ‘full.co nine judges, the decision of — 3 of the Coutt > f 7g . ei Panel 2 in Becker vs. Truitt, 39°Ga, poe 286, that of Panel .* one in Smith vs. Hartramph in 105 Ga. App. 40, and that _ of said court in Executive Committee of the Baptist Conven- tion of Ga. vs. Smith; 44 Ga. App. 184, 161 S.E, 143. Never- theless said motion of petitioner for a rehearing by the full court of nine ‘judges was denied. . “fig pointed out in the petition for certiorari, no question of fact is presented where the respondent makes a solemn admis-_ . sion in judicio in the main case that it is the defendant in fi- fa. as it did iri this case or where the uncontradicted evidence shows the’ same. (R. 58, tte 10 and 11 al the — for certiorari). ~ - Respondent contends that .petitioner-in effect asserted that ' no substantial constitutiorfal question was inyplved by stating that the Court of Appeals had jurisdiction as the case was not one in which the Supreme Court of Georgia had exclu- ‘sive appellate jurisdiction, citing Ga. Code Ann. 2-3704. There is no mgerft in this contention of Respondent, because , (1) Petitioner could not anticipate that the Court of Appeals would not follow its prior controlling decisions on the point —~__ ‘involved and (2). the Supreme Court of Georgia in constru- ing Ga. Code Ann. Sec. 2-3704 has uniformly held that the Court of 2‘\ppeals, and-not the Supreme Court of Georgia, has jurisdiction to decide questionis of law involving applica- _, tion of plain and v ambiguous provisions of the Constitution. “<4 bbott et al v, tate, 211 Ga. 200, 84 S.E. 2nd 667; Felkner v. Still, 176Ga. 735, 169 S.E. 15; Baker v. State, 198 Ga. 250, 3$ S.E. 2nd 908. 399, | Petitioner therefore again urges that shie is entitled as a matter of constitutional right under Section I of the. 14h Amendment to the grant of the writ of certiorari to the Court % > ey . *@Q > A of Appeals of Georgia and reversal of its arbitrary, capricious, ; es and unconstitutional decision. ea Respectfully submitted, a> : oe " - 4G. Seals Aiken, a. a ~% 7 7 Attorney for Petitioner — oo (SUIS Lanes. Seca 1409 Candler Bldg., ; ee _ Atlanta, GE +: 23 t ‘Charles W. Bergman, of Counsel. : ACKNOWLEDGM ENT OF SERVICE. Service is Nisley acknow lesiged and copy received of the” ° - foregoing reply brief of Petitioner for Certiorari: = ae This October Bact avstntateesnncen , 1962. : a ° a ae ae Counsel for Jackson’s Atlanta. pet ap honetae as eae Ready Mix Concrete Company; Inc. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0547%3A5. Public record. Not legal advice.