Giordano v. Stubbs, Civ. A. No. 15577.

• Decision Date: 15 November 1971
• Docket Number: Civ. A. No. 15577.
• Citation: 335 F. Supp. 107
• Parties: Joseph P. GIORDANO et al. v. Hiram F. STUBBS et al.
• Court: U.S. District Court — Northern District of Georgia

335 F. Supp. 107

Joseph P. GIORDANO et al. v. Hiram F. STUBBS et al.

Civ. A. No. 15577.

United States District Court, N. D. Georgia, Atlanta Division.

November 15, 1971.

Haas, Holland, Levison & Gibert, Atlanta, Ga., for plaintiffs.

Stark & Stark, Lawrenceville, Ga., for O. Millard Peevy.

Huie & Harland, Atlanta, Ga., for Hiram F. Stubbs.

Before BELL, Circuit Judge, and EDENFIELD and O'KELLEY, District Judges.

EDENFIELD, District Judge:

Plaintiffs seek declaratory and injunctive relief against the enforcement of 1970 Supp. Ga.Code Ann. § 67-1506¹ on the ground that this statute, as authoritatively construed by the Georgia courts, deprives them of their property without due process of law and is unconstitutional. Plaintiffs also contend that, this case should be determined by a three-judge court in accordance with 28 U.S.C. § 2281 (1970).² A three-judge court has been designated by order of Chief Judge Brown of the Fifth Circuit and the threshold question is whether this is a proper case for a three-judge court. We hold that it is not.

Plaintiffs' complaint alleges that they were indebted to defendant Stubbs in the amount of $30,000 which was secured by a first security deed on certain real property owned by them. Subsequently plaintiffs sold the property to defendant Pope who assumed the debt to Stubbs and also gave plaintiffs a note for $163,500 secured by a second security deed on the property. Pope defaulted both on the debt to Stubbs and the debt to plaintiffs and is now insolvent. Thereafter Stubbs foreclosed on the property by selling it at public outcry pursuant to a power of sale contained in his first security deed. He did not give actual notice of the sale to plaintiffs and his agent purchased the property at the sale for $35,000 which he applied against the debt, interest, and expenses of the foreclosure sale, leaving no excess. The land is allegedly worth $200,000. As a result of the sale a deed was executed in favor of Stubbs purporting to convey the property to him, and the deed was recorded in Gwinnett County, Georgia, by defendant Peevy, the Clerk of the Superior Court of Gwinnett County.

Plaintiffs claim that under § 67-1506 of the Georgia Code, defendant Stubbs was required only to advertise the foreclosure sale; he was not statutorily required to give them actual notice. They say that had they received notice they would have appeared at the sale and bid on the property to protect their interest. Since § 67-1506 does not require actual notice in such circumstances, plaintiffs contend it is unconstitutional because it deprives them of their property without due process. Among their prayers for relief is one requesting an injunctive order directing defendant Peevy to cancel the recordation of the deed in favor of Stubbs.

It is well established that 28 U.S.C. § 2281 (1970) is a technical statute which must be strictly construed. Mitchell v. Donovan, 398 U.S. 427, 431, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970); Allen v. State Board of Elections, 393 U.S. 544, 561-562, 89 S.Ct. 817, 22 L. Ed. 1 (1969). In particular, the requirement that the action seek to enjoin a state officer from enforcing or executing the challenged statute cannot be circumvented by joining as a defendant a state officer whose action is not the effective means by which the statute is enforced or executed. Moody v. Flowers, 387 U.S. 97, 102, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967). Plaintiffs contend that defendant Peevy "executed" § 67-1506 by recording the deed in favor of Stubbs. We do not agree.

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