Doran v. Home Mart Bldg. Centers, Inc.

• Decision Date: 04 February 1975
• Docket Number: No. 29445,29445
• Citation: 213 S.E.2d 825,233 Ga. 705
• Parties: Max J. DORAN v. HOME MART BUILDING CENTERS, INC.
• Court: Georgia Supreme Court

Page 825

213 S.E.2d 825

233 Ga. 705

Max J. DORAN v. HOME MART BUILDING CENTERS, INC.

No. 29445.

Supreme Court of Georgia.

Feb. 4, 1975.

Rehearing Denied Feb. 18, 1975.

Charles R. Smith, H. A. Stephens, Jr., Atlanta, for appellant.

Gambrell, Russell, Killorin, Wade & Forbes, Jack O. Morse, Paul D. Hill, Atlanta, for appellee.

Syllabus Opinion by the Court

UNDERCOFLER, Presiding Justice.

On November 6, 1973, W. M. Griffith as agent of Home Mart Building Centers, Inc., made an affidavit before a judge of the DeKalb Superior Court to secure the issuance of an attachment against the real and personal property of the appellant in accordance with the provisions of Code § 8-109 (as amended, Ga.L.1968, p. 1013). The attachment affidavit alleged that appellant was indebted to Home Mart Building Centers, Inc., in the sum of $108,385.43 together with interest and costs of collection, and that he is actually removing himself without the limits of DeKalb County and absconding and concealing himself for the purpose of avoiding payment of the indebtedness. An attachment bond was given in the amount of $250,000. The writ of attachment duly issued and certain personal property of the appellant was seized. An order was entered directing Doran to show cause on December 14, 1973, why final judgment should not be granted. Doran traversed the grounds of the attachment and moved to dismiss the attachment on the ground that Code § 8-602 only provides for notice subsequent to the issuance of an attachment and without affording an opportunity to be heard before property is seized. He contends that this denies him due process, equal protection and his rights to the courts under the State and Federal Constitutions. Const. Art. I, § I, pars. 2, 3, 4, Code Ann. §§ 2-102, 2-103, 2-104 and U.S.Const. Amend. 14, Code § 1-815.

In Kitson v. Hawke, 231 Ga. 157, 161, 200 S.E.2d 703 this court in upholding the attachment statute as constitutional relied on the decision of the United States Supreme Court in Ownbey v. Morgan, 256 U.S. 94 111, 41 S.Ct. 433, 438, 65 L.Ed. 837, wherein the Delaware attachment statutes were upheld as constitutional. That court stated that 'a property owner who absents himself from the territorial jurisdiction of a state, leaving his property within it, must be deemed ex necessitate to consent that the state may subject such property to judicial process to answer demands made against him in his absence, according to any practicable method that reasonably may be adopted. A procedure customarily employed, long before the Revolution, in the commercial metropolis of England, and generally adopted by the states as suited to their circumstances and needs, cannot be deemed inconsistent with due process of law . . .'

In the Kitson case this court further said: 'Moreover, the recent cases of Sniadach v. Family Finance Corporation, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349, supra, and Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556, supra, do not stand for the proposition that every summary proceeding is a denial of due process, as contended by the appellant. Indeed, the Ownbey case is cited in Sniadach as authority for the statement that 'summary procedure may well meet the requirements of due process in extraordinary situations.' 395 U.S. 337, 339, 89 S.Ct. 1820. In Fuentes, the Court stated that these situations, however, must be truly unusual, such as when 'there has been a special need for very prompt action.' Justice Stewart noted that the Ownbey case 'involved attachment necessary to secure jurisdiction in a state court-clearly a most basic and important public interest.' 407 U.S. 67, 91, 92 S.Ct. 1983, 1999, 32 L.Ed.2d 556 (Fn. 23).'

Code § 8-101 provides that 'Attachments may issue in the following cases: 1. When the debtor resides out of the State. 2. When the debtor is actually removing, or about to remove, without the limits of the county. 3. When the debtor absconds. 4. When the debtor conceals himself. 5. When the debtor resists legal arrest. 6. When the debtor is causing his property to be removed beyond the limits of the State.'

In North Georgia Finishing, Inc. v. DiChem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751, decided January 22, 1975, the United States Supreme Court held that Georgia garnishment statute unconstitutional. The basis of the decision was that the garnishment was issuable on the affidavit of the creditor or his attorney, and 'the latter need not have personal knowledge of the facts. § 46-103. The affidavit, like the one filed in this case, need contain only conclusory allegations. The writ is issuable, as this one was, by the court clerk, without participation by a judge. Upon service of the writ, the debtor is deprived of the use of the property in the hands of the garnishee . . .' and because there was no provision for an early hearing of the matter.

The only part of the attachment statute under attack here is Code § 8-602 which provides: 'The plaintiff, his agent, or attorney at law may give notice in writing to the defendant of the pendency of such attachment and of the proceedings thereon, which shall be served personally on the defendant by the sheriff, his deputy, or a constable of the county to which said attachment is returnable, by giving him a copy of said notice at least 10 days before final judgment on said attachment, and returning said original notice with his service entered thereon to the court in which said attachment is pending . . .'

In the instant case the attachment affidavit was made before a judge of the superior court asserting that Doran is actually removing without the limits of DeKalb County; that Doran absconds; that Doran conceals himself; that he is actually removing, absconds and conceals himself for the purpose of avoiding payment of the aforesaid indebtedness and that the deponent has personal knowledge of the facts and knows them to be true.

We hold that the facts in this case meet the 'unusual conditions' or 'extraordinary situations' tests of the Supreme Court and that Code § 8-602 is not unconstitutional for any reason asserted. Compare Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974).

Judgment affirmed.

All the Justices concur.

GUNTER, Justice (concurring).

It is with great uncertainty that I concur in the judgment of the court in this case, for I perceive that we are again in the Sniadach, Fuentes, W. T. Grant, and North Georgia Finishing thicket.

I concede that the Georgia attachment statutes do not provide for notice and a hearing prior to 'seizure,' 'deprivation,' 'sequestration,' or 'impoundment.' Georgia's prejudgment garnishment statute (not applicable to wages) did not provide for notice and a hearing 'prior to impoundment,' and it was declared unconstitutional by a vote of 6-3 by the Supreme Court of the United States. North Georgia Finishing, Inc. v. Di-Chem, Inc., decided January 22, 1975. My reading of the opinions in that case indicates to me that four members of the Supreme Court stand rigidly on the proposition that a hearing must be held prior to the deprivation of the property right. Five members of the Supreme Court of the United States seem to me to hold that such a prior hearing is not necessary in some cases provided a reasonably timely hearing is conducted after the deprivation.

Sniadach and Fuentes said plainly to me that a seizure of property, effected by or with the aid of the state, without a hearing prior to the seizure did not comport with constitutional due process requirements.

However, when this court decided North Georgia Finishing, Inc. v. Di-Chem, Inc., I did not believe that a 'prior hearing' was absolutely necessary in all circumstances, because to give prior notice and a prior hearing in a garnishment action where the debtor was a corporation merely permitted the debtor to check the funds out of the bank account sought to be impounded. A requirement of prior notice and a prior hearing in such a situation rendered garnishment, for all practical purposes, totally worthless.

Fuentes said: 'But it is now well settled that a temporary, nonfinal deprivation of property is nonetheless a 'deprivation' in the terms of the Fourteenth Amendment. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349; Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90. Both Sniadach and Bell involve takings of property pending a final judgment in an underlying dispute. In both cases, the challenged statutes included recovery provisions, allowing the defendants to post security to quickly regain the property taken from them. Yet the court firmly held that these were deprivations of property that had to be preceded by a fair hearing.' P. 84 of 407 U.S., p. 1996 of 92 S.Ct. Again: 'This reading of Sniadach and Goldberg (Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287) reflects the premise that those cases marked a radical departure from established principles of procedural due process. They did not. Both decisions were...