Jurisdictional Statement — Giordano v. Stubbs

‘Supreme Court, US. a

FILED

DEC 23 1971

E. ROBERT SEAVER, CLERK

- SEE COURT OF THE. UNITED STATES

ya OCTOBER TERM, 191

_____.——— JOSEPH GIORDANO, SAM GIORDANO and ti‘ S

; _ JOSEPHINE ‘GIORDANO, Lage

— ,

v. 3

H. F. STUBBS, BOB E. L: HOPE, SUMMER- MINTER AND.

ASSOCIATES, INC., and HUGH SUMMER, =‘

‘Apelles. :

sara na On Appeal from t the | Supreme ( Court ot Georgia

JIEDICTONAL STATEMENT :

| Pit | | ~ HUGH W. GIBERT

ae ~~ 2709 First National Bank 7

ao _ Atlanta, Georgia 30303 °

(404) 5256141 ~Ssi«t

| — for the Appellants —

Of Counsel a

HAAS, HOLLAND, LEVISON & GIBERT

- 2709 First National Bank Tower

.- Atlanta, Georgia 30303

* (404) 525-6141 ‘

‘St. Louis Law Printing Co., Inc., 411-15 N. Eighth St. 63101 314-231-4477

.

* NUNC eT RR RT ERR I RE DK nt

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7

’ Eat Se ee ere Page

7 Opinions Below .. pa ae e. vs koa Ree # ae oe 7 4

Grounds of Jurisdiction Picixaeains ivesnenades eS

Questions Presented a. “es Leeann ee ions coshaemer aR pee

: | Statement of the: Case... en Pere awe sApnaae 4 Lf

The. Federal Questions Are’ Substantial eae Fone 6/ f

Xs 7 a

Conclusion seo hea esuwes oes ceWee es ae eaeses SS edida- be 2 Mi

a Appendix A—Opinion of. the > Supreme Court

’ Georgia senda eeacee nee se eeee . Sef sees ye A-l_

Appendix _ e-Cieder of the. re Court of -

: DeKalb County ... i.e eee vee ee eee tees “ eee s A-14

TABLE OF CITATIONS

Cases: PA

- Admiral Cniidining ‘Vv, Thom : ra 164 KF. Supp, § 569

(D.C. D.C., 1958) ........ 8. Re nike eee ocedes 13>

Armstrong'v. Manzo, 380 US. 545, 14 ak = 62, eee

S.Ct. 1187 (1965). sepeteees tick assed teieewak os :

Califorsin, v. Green, 399 US. 149, 26 Led re oy 90°

GOL. OD TUN) <3. ee aaa

Covey v. Somers, 351 U.S. 141, 100 L.ed 1021, 76 S.Ct. >

POR MEE 5 oe aaa ies ee, “8

‘Huling v. Kaw Valley R. and Improvement Co., 130°

De eer: Re

ea In Re Gault, 387 US. 1, B Lied 2d 527, 87 Sct. 1428

RD ann en GUE RS, ee eins 12°

Lambert v. Califorids:. 355 US. 225, 2 Led 2d 228, A

78 S.Ct. 240 ants Peete teehee tees eee ees ‘i védwbes 11 .

i a ° * ‘ .

is . : . re : ‘ .

s ae : : : . ‘

2° ae . g v - a . -‘e ,

S : : eo. ; *

orden one nme

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ee

"Marin v. England, 385 U.S. 99, 17 Led 2a 197, 87

oh, os SEER CL REE POSTE 10

= ‘Miller v. Schoene, 276 U.S. 272, 72 Led 568 (1928) 3

‘Mullane v. Central Hanover Bank & Trust Company, #

| 339 U.S. 306, 94 L.ed 875 (1950) . Sy 11, 12

| _ New York v. New York, New Haven & Hartford. Rail-

road Co., 344 U.S. 293, 97 L.ed 333, 73 S.Ct, 299 x

(1953) iciasuk Weiter ign ices Het ees seecieee 9,10

a Sehrocder = York,. 371. U.S. 208, 9 ) Led 2a 255, 83

S.Ct. 279, 89 A.L.R. 2d 1398 (1962) <.:...... A Mie «9

Scott y. Paisley, 271 U.S. 632, 70 Led 1123 ae

(1925): ...:... foe sesceeesercgeeees seca e oces 0G, 18,18

Security Mortgage Co any v. on 578 U.S: 149,

-- 73 Lied 236 °(4928) ........... ha We Bost eee 13

‘- Sniddach v. Family Finance Corporation, 395 U. S. 337, ©)

93 L.ed 2d 349, 89 S.Ct: 1820 (1969) ...... 4 .e0. 10

Walker. v. Hutchinson, 352 U.S, 112; 1 Led 24 178," | '

ES rt reer ce: I

William v. Illinois, 399 U.S. 935, 96 Led 2a 586, 90

S.Ct. 2018 (1970) ..... Aoi a ROMP sg SES A oss al .

Winters v. New York, 333 U.S. 507, 92 L. ed 840" (1948) 3

- Youngiv. Ridley, 309 #, Supp. 1308 (D.C. D.C 1970) 13

shat C

. 6.

sii es 1935, page 381, (Georgia Code in, - |

/§ 37611 and § 67-1506) ...... SE ee ee ies 2

Title 28 U.S.C. .§ 1257 (2) 0.2.00... ccc eee eee Wats wee Ti eee

‘Other Authorities |.

i Note, Snatinainnte of Notice in In Rem. Proceedings,

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70 Harv. L. Rev. 1257 (1967) vewvekee 65 ceew ewe FE 12

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IN THE |

- SUPREME ca OF THE wre sus

OCTOBER TERM, 1971

No. alee ide, tit >

“JOSEPH GIORDANO, SAM GIORDANO and . )

SX JOSEPHINE GIORDANO, :

Appellants, side, wre

V.

H.- . STUBBS, BOB E. L. HOPE, SUMMER. MINTER AND

‘° "ASSOCIATES, INC.; and HUGH SUMMER, ———

Appellees.

On Appeal ‘ie te Supreme ee of Georgia

JURISDICTIONAL STATEMENT ==

Appellants Joseph P. Giordano, Sam Giordano and Jose- -

_ phine Giordano, have filed a Notice of. Appeal to review ~

. the judgments (in companion cases) of thd Supreme Court

at Georgia entered on September 27, gia

OPINIONS BELOW

_° The Gebiiua of the Supreme Conti 3 of Georgi, reported }

at 228 Ga. 75 and 228 Ga. 85 are. set out in - Appen@ix AL

Caan, unreported, is set. out in. Appendix B hereto. :

hotiaes ee ei

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hereto. | ‘The Order of. the Superior Court “of DeKalb © .

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GROUNDS oF J URISDIOTION

This: was ah ‘aotion instituted in the Superior Court of

"DeKalb County, Georgia! for- the ‘purpose of setting’ aside

a-certain real estate foreclosure. The action was com- ,

menced i in accordance with the Georgia Civil Practice Act _

and: invoked the eons) equitable powers of the Court.

‘Plaintiffs, holders of a second security deed to certain dde- \

scribed real estate sought relivf against the foreclosure, ,

without notice, ,of a first security deed to the property. :

Under Georgia law, the effect of the foreclosure of a senior

security interest in ‘property is to destro oy junior interests

in the property. Scott ©. \isley, 271 U.S." 636 (1988) 5, see |

also the decision of the Court below, 228 Ga. 75. |

Plaintiffs sonal: a declaration of the invalidity. of the

foreclosure on several state grounds and upon the féderal

— that the foreclosure, if ‘held -vaid, in the circum-

stances of the case,, would deprive them of . their property.

" without. due process. of law.

Both parties filed motions for: summary ; 5 iokaneed These

, were denied by the Superior Court of’ DeKalb County on —

March 8, 1971.. The Superior Court granted a certificate

7 allowing an interlocutory appeal. See Appendix. Se

The haben Court of. Georgia filed its judaiiined and

-opinion on September 27, 1971 affirming the denial of plain- ©

os tiffs’ motion for summary judgment. but reversing the de-

nial of the motion.for summary judgment, filed on. behalf

of the defendants. The notice of appeal to this Court was . |

. filed in: the Supreme Court of Lac on December 22,

197 1,

‘The complaint sie this appeal call in question the .va- .

: “y lidity of Georgia Laws 1935, ‘page 381 (codified at Georgi;

. Code <Ann., § 37-611 and § 67-1506) which provides. , as

- follows: i S ray l:

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‘“No sale of teal pati: under ppwers. contained in.

mortgages, debt, deeds, ' or other lien contracts shall be

_.-+valid unless the sale shall be advertised and conducted

“at the time and place and in the tou manner of Sher-

iff’s sales in the county in which’ sich real estate, or § a

_ part thereof, is located. Biiore ISe ahed

“This -Statute’ has, been authotitativaly construed = oe

Georgia courts: as. authorizing foreclosure with notice <a

publication to persons interested in, the property, but with-).

olt actual notice.. See the opinion of the. sid below at)"

229—et.. 78, and cases. cited. Plaintiffs contépded iz the .

* courts below that a-foreclosure without, notice ipursuant to.

such statute’ as so construed would deprive’ them. of their.

property without due process of: law in violation: of the

- Fourteenth Amendment to the United States Constitution,

and that the Statute as so construed, was unconstitutional.

This’ constitutional claim was rejected. Jurisdiction is con-—

| ferred upon this Court by Title 28 U.S.C., ¢ 1257 (2).

Jurisdiction of this. ‘Court. is properly’ invoked by ap-

peal.‘ The case présents esséntially the same aa

‘that were presented to this court by appeal in Mullane -

y, Central Hanover Bank & Trust Co., 339 U.S. 306, 94

- L.ed 875 (1950), In ‘that, case, as in this, the question~ . .

presented° to the court for Teyiew was: whether’ a state

-

. statute ‘which. authorized the destruction of valuable =

‘ property rights with notice to affected parties by. :publi- °

Gation ,orly could withstand a challenge based upon the -

(. Pour enth Amendment to the United States Constitution,

. In addition, this court, reviewed: by writ: of error Miller,

v. Schoene, 276 U.S. 472, 72°L.ed 568 (1928), ‘That-case. -.

dealt with - the~cons htutionslity under. the Fourteenth

Amendment ‘of d Stale Statute supine g the destruc. * —

. tion | trees where considered to sessary to prevent

the spread of a certain disease. Win rs v. New York, ».,

(* "- 333 U.S. 507, 92 L.ed 840 (1948), was a ‘review by appeal

of a challengé to a stat e obscenity stitute under. the” Four-|

teenth Amendment to the United States’ Constitution, (+

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QUESTIONS PRESENTED

1. Dees . a State Statute . which suthosines the je

-° tion of subordinate security interests.in property by fore-

. closure of senior security interests without notice (other

than by publication) violate the due process clause of the |

Fourteenth AThendment to the Wpited States Constitution

- where the foreclosing party has ac knowledge of the

existente of the subordinate sectirity intyrests and of the

names and addresses of the holders of h interests.

2. Where the holder of a first securitf interest in. prop

erty has actual knowledge ofthe ,

ordinate security interest in such.

names and addresses of the holders. df such subordinate

security interests and, despite such knowledge, forecloses

without notice to the holders of the subordinate interest |

(other than by publication), and where the effect of such

foreclosure under state law is td destroy the subordinate

interest, does the state statute authorizing such procedure,

as applied, deprive the holder’ of the subordinate security

jnterest of their property without due process of law? _

STATEMENT.OF THE CASE

js case. ‘involves certain real estate in Gwinnett

County, Georgia, with a value of approximately $200,-

000.00. Immedigtely prior to February 3, 1970; Bob E. L.

Pope was owner of such . property subject to two

security d first security deed was held .by the

defendant Stubbs to secure an indebtedness of $30,000.00

_and the second security oa held by the plaintiffs

to secure an indebtedness. of’ $163,500.00. Though the .

, plaintiffs were unaware of it, Pope defaulted on his note-

to Stubbs on October 14, 1969, and in January of 1970

qn commenced foreclosure gi th

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a Stubbs. had actual iecaieiaae the wien of plain-

tiffs’ security. interest in the property, and actual knowl -

édge of the names and addresses. of the plaintiffs. ‘In

spite of such knowledge, Stubbs did not give notice to:

_ the plaintiffs .ef-the foreclosure proceeding, although he

did publish notice of the foreclosure in the Gwinnett

- Daily News-as required by Georgia law. (Plaintiffs Joseph

and Sam Giordano were residents of DeKalb ‘County,

Georgia, and plaintiff Josephine Giordano was a resident

of Batavia, New York.)

Plaintiffs did not learn of the foreclosure until after it

- had taken place. As a result, the only person bidding at

the foreclosure was an agent for the defendant Stubbs

who bid in the property for Stubbs for $35,000.00, which

amount was entirely consumed-in paying the Stubbs’ in-

’ debtedness and costs of the foreclosure. Pope is insolvent

and has subsequently defaulted on’ the note given to the

plaintiffs. — .

- ey a the effect of 2 foreckeure of s senior

security instrument is to destroy all subordinate interests

in the property. If the foreclosure is held to be valid, —

plaintiffs will have lost their security and any chance of

realizing on the indebtedness to them.

Plaintiffs contended that.if the Georgia foreclosure pro- :

cedure, particularly Georgia Laws. 1935, page 381, set out ~~

above, is sustained in these circumstances, the effect of | :

such holding would be .to deprive the plaintiffs of their

property without dueprocess of law. The Supreme Court

_of Georgia sustained a motion for summary judgment on .-

behalf of the defendants and therefore, in effect, denied

the plaintiffs’ constitutional contentions. \ )

Plaintiffs’ constitutional contentions were presented to

the Superior Court of DeKalb County in the Amended

Complaint and by brief in opposition to the defendants’.

motion for summary judgment. When the Superior Court

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of DeKalb County denied the motions for summary judg- -

ment made on behalf of all parties, it, apparently, found it

unnecessary to rule upon the constitutional claim: There-

after, the plaintiffs filed a notice of appeal to the. Georgia

~ Court of. Appeals (which does not have jurisdiction ever

the constitutional claim) but the defendants filed notice of

appeal to the Georgia Supreme Court. The cases in the

Court of Appeals were transferred on the motion of the .

" Court to the Georgia Supreme Court. Although the plain-

tiffs believed that the constitutional issue should not be

- decided by the Supreme Court of Georgia since it” had not

been decided by the trial court, the plaintiffs briefed the

question in the Supreme Court of Georgia, as did the de-

fendants. Briefly stated, the Plaintiffs relied upén Mullane

v. The Hanover Bank & Trust Co., 339 U.S. 306, 94 L.ed.

875 (1950), and cases following it, for the proposition that

>. they were entitled as a-matter of constitutional. law ‘to

receive notice of the foreclosure in the circumstances of ,

this case. Defendants relied, for ‘the contrary proposition,

principally upon Scott.v. Paisley, 271 U.S. 636 (1925).

Althongh the plaintiffs do not believe that the Supreme

* Court of Georgia should have passed upon the constitu-

tional question, since it was not passed upon by the trial

court, the effect of the decision of the Georgia Supreme

Court is to conclude the case and thereby to deny the plain-—

tiffs’ constitutional claim. Apparently this was the inten- <

tion “of the Supreme Court of Georgia since it. relied, in

its opinion, upon Scott v. Paisley. See 228 Ga. 75, at 78. -

The Federal Questions Are Substantial

‘The eoiing case is Mullane v. Central Hanover Bank &

Trust Company, 339 U.S. 306, 94 L:ed. 875 (1950). In that .

case, a New York statute allowed a corporate trustee to

settle accounts with regard to its administration of a com-

mon trust fund ‘by filing a suit-for the purpose. The stat- -

ute provided that the only Pees had to be given to

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a pac

persons interested in the fund was notice by publication

for four successive weeks. The publication contained the

name and address of the trust company, the name and date

of establishment of the trust fund, and ; a list of pie

ing estates, trusts or funds.

The Suprente Court held that this statutory procedure

was violative of the due process clause of the Fourteenth

Amendment. Mr. Justice Jackson, for the Court, noted

that. valuable property rights could be destroyed and, as

a practical matter, without notice. Only chance, the

Court said, brings a newspaper advertisement to the at- ee

tention of all persons interested. The Court took notice - -~—~—

of the nécessity for establishing a procedure for settling

the accounts of a common trust’ fend, but said that only

a procedure that |

‘Cone desirous of: actually informing the absentee

might reasonably adopt to accomplish it’’

_ would satisfy the requirements of due process. Thus, the

trustee -was required at least to give notice by mail: to ;

those beneficiaries whose addresses were in its files. In-

sofar as the statute relieved it of this egntion it was

unconstitutional.

The Mullane case has been cited and followed i in a wide

variety of circumstances.

“Walker v. Hutchinson, 352 US. Tix 1 Lied. 24 178, 77

S.Ct. 200, was a case in which the City. of Hutchinson

condemned the’ petitioner’s property, giving notice’ by

publication. The Court, relying upon Mullane, held that . ,

this was a violation of: due preneee. Mr. Justice Black, ve

for the court, said:

“Tt is common heciiiies that | mére newspaper pub-.

lication ‘rarely informs.a landowner of proceedings —

‘ against his property. In Mullane we pointed out

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many of the infirmitics of such notice and emphasized

the advantage of some kind of personal notice to

- interested parties. In the present, case, there seem

to be no compelling or even persuasive reasons why. ©

- such direct notice cannot be given. Appellant’s name

was known to the city and was on the official records.

_> Even a letter would have apprised him that his prop-

erty was about to be. taken and that- he must appear

if he wanted to be heard as to its value.’’ 352 U-S.

at 116. re

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_- The state-retied-upon Huling v. 1 Kaw Valley R. and Im- -

Co., 130°U.S. 559. The court pointed out that

{that was an 1889 ease which upheld notice by publication

‘in. a condemnation proceeding on the ground that ‘the

landowner was a non-resident. _ Mr. Justice Black then

said: a |

- “Sinee appellant in this case is a resident of Kansas,

‘ weare not called upon to consider the extent to

which Mullane may have undermined the reasoning

of the Huling decision.” 352 U.S. at 116..

In the case at bar two of the plaintiffs were residents

Covey v. Somers, 351 US. 141, 100 L.ed. 1021, 76 S.Ct

724 (1956), involved a sale of a taxpayer’ s property. fo

unpaid‘ taxes. The taxpayer in this case received act

notice of the tax. default and the impending sale of the

property. However, she was incompetent and known, to

the city officials to be incapable of handling her property.

This Court_held that the-sale of the property in these cir-

cumstances was unconstitutional. ‘eats upon Mullane,

the court said: = 3

‘‘When notice is a person ’s tie, process which is a

of Georgia and the _— > was aware of. their

| interest in the property. : :

mere gesture is not due process. The means em-

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eel must be such, as one desirous of. nie in-

forming the absentee might reasonably’ ate to ac- |

complish it’”” ;

New York v. New York, New Haven & Hartford Rail.

road Co., 344 U.S. 293, 97 L.ed 333, 73 S.Ct. 299 (1953),

" was a reorganization under. the bankruptcy law. The city —

had a lien .on the property of: the railroad imposed. for

street, sewer and-other improvements. The -city -was not

“given “notice of the reorganization proceedings, except

that it was published twice in five daily newspapers.

This Court held that this was not adequate notice to cut

‘off the city’s lien rights. Relying upon Mullane, ‘Mr.

‘Justice Black, for a unanimous court, pointed out that

notice by publicatior is a very poor .substitute for actual

service of process and its justification is- difficult at vest.

He said that when names, interests and addresses of the

persons are unknown, plain necessity may cause a resort

to publication but unless there is some ann necessity,

actual notice is ‘required.

Schroeder v. New York, 371 U.S. 208, 9 L.ed 2d 255,

83-S.Ct. 279, 89-A.L.R. 2d 1398 (1962), was a case in

-which the city of New York instituted proceedings to _

acquire the right to divert a river from its natural course.

The city gave notice of the. action pursuant toa statute

which -provided that notice would be published in two

public newspapers in the -city of New York’ and two

public newspapers. published in each other county in

which ‘any real estate affected was located, In addition,

the city “posted 22 notices along a few miles of riverbank, . .

but did, not ‘give any_other, notice to property owners.

The statute ; celia that propbrty owners affected

could collect alee for the-divérsion and imposed a

three year statute of limitations.. After the expiration of

the statute of limitations, the plaintiff. filed a suit in

equity contending that the notice was unconstitutional,

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relying upon “Mullane. The New York courts upheld the ;

constitutionality of the.act but this Court reversed.” Mr. —

Justice Stewart for the unanimous’ court pointed ‘out that

in Mullane it. was recognized that it is sometimes impos-

sible to givé personal notice and the examples given were

missing or unknown persons, -He then said:

‘““The general rule. that emerges from the Mullane

case is that natice by publication is not enough with

respect to a person’ whose name and address are |

known or very easily ascertainable and whose legally

protected interests are directly affected by the -pro-

ceedings in question. ”’ 371 US. at 212, 213..° 3 ‘ oe

Mr. Justice Stewart; also velerred to New York © v.' New.

York,.New Haven and Hartford Railroad Co., supra,

where the court pointed out that:

‘‘Notice by publication is a poor and sometimes hope-

less substitute: for actual service of notice’’

’ and that

os “its justiflontion is difficult at best.’’

. = Sniadach v. Family Finance Corporation, 395 U.S.

337, 23 L.ed 2d 349, 89 S.Ct. 1820 (1969), this Court held.

‘ unconstitutional a Wisconsin law which provided for

garnishment of wages on a pending;suit. Mr. Justice

Harlan, concurring, said that the debtor was being de-

prived of the use of the wages during the period between

‘the’ garnishment and the ‘conclusion of the main suit. He

said that the use of the wages was property, of which

a person may not be “deprived without due process,. and

he cited the Mullane case in that connection.

Marin v. England, 385 U.S. 99, 17 Led 2g 197, 87 S.Ct.

274 (1966), -involved a part of the bankruptey act which

. provides: that. title to the property of -the bankrupt. is

- vested in the trustee on the date of filing*of the petition.

im that’ connection. 7. 2

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A ‘bank had honnired checks after the date of fling ofa

bankruptcy, petition but prior] to receiving . notice of it. .

This -Court refused to give effect to the statutory -pro-—

visions, and relied upon Mullane: se

_ Mullane has -general application to ‘the whole eines

of notice requirements to satisfy due process of law. As

striking examples, consider /the cases below outside the

property field. Ss ] :

In Armstrong.v. Manzo, 380 US.: 545, 14 Led. 2a 62,

85 S.Ct/ 1187 (1965), a husband ‘and. wife were divorced.

‘. and custody of the child was awarded to the mother. Sub-

sequently the wife married and ‘she and’ her second hus-

band brought an action for the child to be adopted by. the ~

second husband. Texas law provided that: the adoption

would have to be, consented to by the natural fathef unless’

_he had failed to contribute, commensurate with his ability,

to: the ‘support of the child for two years. . The husband ,

and wife filed an affidavit that the first husband had not

relying upon Mullane.

Lambert v. California, 355 US. 225, 2 Led. 2d 228,-78

S.Ct. 240 (1957). California law provided that it:was’ un-

lawful for a person convicted of a felony to be or remain

in Los Angeles for a period of more than -five days with-

out registering. Mrs. Lamberfwas convicted of violating. - —

‘this law but contended that she had no knowledge of the

registration requirement. The Supreme Court reversed —

the conviction, saying the due process required that she’.

have notice of the nares eel ~The Court cited Mullane

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‘. contributed’ to the support of the child and.got the ap- _

_proval of the Court of Ordinary’ for the adoption. They —

‘gave no notice of any of it to the husband, although they

~ . knew his whereabouts, in Fort Worth. The adoption. pro-

: ceeding was. in El Paso. The Texas court. affirmed the

«procedure but. the ‘Supreme Court unanimously reversed,

yet os Re Per acme Pine -

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ta Re Gault, 387 US: ae 18 iaed. 2d 527, 87 S.Ct. 1428

(1967), the Supreme Court held that due process of law

_ requires notice in writing of a juvenilé court hearing ‘‘at

_ the earliest practicable time, and in any’ event sufficiently

in advance of the hearing to permit preparation.” . - this

connection, it cited Mullane. 3

- California v. Green, 399 U.S. 149, 26 L.ed. 2d 489, 90

S.Ct. 1930 (1970), discusses the right of the prosecution

to use a witness’ 8 preliminary hearing testimony in con-

nection with the accused’s right of confrontation. Mr.

Chief Justice Burger, concurring, cited Mullane in con:

- nection with the obligation of the prosecution to produce

a witness. He.said- that a good faith effort to premane a

witness was required.

The latest: case that we find siting Mullane is Williams

* y. Illinois, 399 U.S. 235, 26 L.ed. 2d 586, 90 S.Ct. 2018

_ (1970Y,' which -held that it- was unconstitutional to put an -

indigent in prison ‘because he was unable to pay a fine.

Mr. Justice Harlan, concurring in the result, said that he

_. did not think ‘“‘a state may, after declaring itself indiffer-

’ ent between ‘a fine and jail, rely on the convenience of the ae

latter as a constitutionally acceptable means for enforeing

its interest, given the existence of less restrictive alterna-

tives. Cf. Mullane v. Central Hanover Trust Company.

‘For a comprehensive discussion of the subject as of

1957, see also Note, Requirements of Notice in-In. Rem

a 70 Harv. L. Rev. 1257 (1957). ae ere

It is necessary to make reference to, Scott. Vv. Paisley,

271 US. 632,.70 L.ed. 1123 (1926). That case upheld | an

; _ earlier Georgia foreclosure procedure against a due process -

attack. The procedure under consideration did not =.

notice.

The case is ‘lintinguishable in that the plaintiff did not

contend that there was any defense to ‘the note involved,

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Potente eee tts 2

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~ and therelecs she was not injured, Parties with different

| legal interests from those involved i in: the case at bar were :

contesting there. Ss ie ; arse yee ea tar

Most important, however, it.i is quite clear that Scott ‘v.

: Paisley applied ideas of due process which have been cate-

gorically rejected by later decisions ‘of this ‘Court:. Our. .

search reveals only one reference to it in. later decisions of

the Supreme Court. That was ‘in Security Mortgage Com-

pany v. Powers, 278 U.S, 149, 73 L:ed. 236 (1928), whe re

Scott v. Paisley was mentioned in passing but was unim-

notice. ° Nor have we found any lower federal court de-

os -¢ision relying upon Scott. v. Paisley for any proposition

other than that t gaod title generally passes: on a sale pursu-

_ ‘ant to a power, but not discussing] the notice question. One

such case (one of the two’ we found that was mofé recent

’ than 1936) was Young v. Ridley, 309 F. Supp. 1308 (D.C.

_ D.C., 1970), where the’ Court, however, took specific notice.

of a 30-day notice requirement present in that case which,

, of course, is‘a vital distinction. - The other ‘‘modern’’ fed-

eral decision referring to Scott v. Paisley is Admiral Com-

portant. to the case which did not deal with the question of = ~

pany v. Thomas, 164 F. Supp. 569 (D.C. D.C., 1958), _—

no constitutional question was raised.

It seems dear that Scott Ve Paisley would not and should

not be extended beyond ‘its specific facts. It did not up--

hold the statutory provision involved in the case at bar.

and it is therefore no bar to the plaintiffs’ recovery. How-..”

ever, if it is not distinguishable, Scott v. Paisley has been .

completely: undermined ‘by. later cases and should bé over- =. |

ruled.

A:

’

CON LUSION

“appellants submit “that substantial

federal questions dre presented by the appeal . which re-

quire plenary consideration, briefs, on ‘the ‘merits, and oral

- argument for their resolution.

" Respeetfly submitted.

HUGH W. GIBERT he :

Attoiney for thé Appellants

Of Counsel igh) a 7”

HAAS, HOLLAND,. LEVISON & GIBERT ne

. 2709 First National Bank Tower

_ Atlanta, Georgia 30303

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