Jernigan v. ECONOMY EXTERMINATING COMPANY

• Decision Date: 13 May 1971
• Docket Number: Civ. A. No. 13856.
• Citation: 327 F. Supp. 24
• Parties: Alfred JERNIGAN v. ECONOMY EXTERMINATING COMPANY, Inc. and H. A. Spruill, Individually and in his capacity as Marshal of the Fulton County Civil Court, State of Georgia, Defendant-Intervenor.
• Court: U.S. District Court — Northern District of Georgia

327 F. Supp. 24

Alfred JERNIGAN v. ECONOMY EXTERMINATING COMPANY, Inc. and H. A. Spruill, Individually and in his capacity as Marshal of the Fulton County Civil Court State of Georgia, Defendant-Intervenor.

Civ. A. No. 13856.

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

May 13, 1971.

COPYRIGHT MATERIAL OMITTED

William J. Brennan, Jr., Robert Dokson, Atlanta, Ga., for Alfred Jernigan.

Harold Sheats and Paul Anderson, Atlanta, Ga., for H. A. Spruill.

Charlie Parker, Jr., Atlanta, Ga., for Economy Exterminating Co.

Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Asst. Atty. Gen., Alfred L. Evans, Jr., Carl C. Jones, III, A. Joseph Nardone, Jr., Atlanta, Ga., for State of Georgia.

Before BELL, Circuit Judge, and EDENFIELD and HENDERSON, District Judges.

EDENFIELD, District Judge:

This case began as an attack by the plaintiff, Alfred Jernigan, complaining of a pre-judgment seizure of a car by his former employer, Defendant Economy Exterminating Company, pursuant to the Georgia bail trover statutes (Ga.Code Ann. § 107-201 et seq.). The constitutionality of these statutes was attacked for the same reasons relied upon in Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), and Hall v. Garson, 430 F.2d 430 (5th Cir. 1970), and cases following them. A three-judge court was convened and a hearing was held on the 26th day of August, 1970.

Before proceeding to the details of the controversy, it is necessary that we delineate the operation of the trover laws in Georgia: In a simple trover proceeding in Georgia there is no final seizure of the property until after final judgment. No attack is made on this simple trover statute (Ga.Code Ann. §§ 107-101-107) in this case. The Georgia statutes further provide, however, that under certain circumstances the plaintiff, at the time of filing his trover action, may file an affidavit requesting that the property be seized or a bond (bail) required, or that in default thereof the defendant be imprisoned¹ pending the outcome of the case. It is these "bail" statutes which are under attack here. The statutes operate as follows: Having filed his simple petition in trover, the plaintiff may then file with the Clerk an affidavit stating:

(1) That the property is in the possession, custody or control of defendant;

(2) That the plaintiff has reason to apprehend the property has been or will be concealed or will not be forthcoming to answer the judgment made in the primary trover proceeding;

(3) The value of the property and the amount of hire claimed;

(4) That the plaintiff truthfully claims a bona fide interest in the personal property that is the subject of the action.

When the affidavit is filed with the Clerk, the affidavit is affixed to the original trover petition (Ga.Code Ann. § 107-202). The sheriff "or other lawful officer" serving the petition must thereupon perform the following duties:

(1) The officer must take from the defendant a bond for the production of the personal property that is the subject of the action. The bond must be payable to the plaintiff in double the amount sworn to in plaintiff's affidavit. (Ga. Code Ann. § 107-202.)

(2) If the defendant fails to give the security for production of the property, the property is seized by the officer. The property is held by the sheriff until termination of the action unless plaintiff posts a replevy bond. If the plaintiff gives a replevy bond for the property, the property seized may be released to the plaintiff. (Ga. Code Ann. § 107-203.)

(3) If the property is not to be found and cannot be seized by the officer the defendant is committed to jail until the property is produced or the defendant makes a bond with good security. (Ga. Code Ann. § 107-203.)

Release of defendant:

(1) A defendant imprisoned because of his inability to produce bail may seek release by filing with the judge of the court in which the suit is pending a petition under oath which includes the following:

(a) A statement that the defendant is not able to give the security required by law;

(b) A statement that the defendant is not able to produce the property, but can furnish satisfactory reasons for its non-production;

(c) A traverse of the allegations in the plaintiff's affidavit for bail.

(2) The judgment must conduct a summary hearing concerning the defendant's petition after plaintiff has been given reasonable notice (not to exceed five days). The judge must discharge the defendant upon his own recognizance, if the judge finds after the hearing that:

(a) The defendant can neither give the security nor produce the property; and

(b) The reasons for non-production of the property are satisfactory.

If the judge fails to make the findings set out above, the defendant is held in custody. (Ga. Code Ann. § 107-205.)

At the three-judge hearing it appeared without dispute that while the plaintiff Jernigan was employed by Defendant Economy he obtained a car from the company. Plaintiff claims he purchased the car from the defendant and executed a conditional sales contract; he further alleges he was not in default at the time of seizure. The defendant,² on the other hand, claims the car was never sold to plaintiff but merely leased to him by Economy.

At the time of the three-judge hearing a dispute arose as to the relationship between the plaintiff and the original defendant and as to the exact nature of the contract between them concerning the automobile. Since it appeared that resolution of these issues would require considerable evidence, the three-judge court heard arguments concerning the facial validity of the bail trover statute and remanded the factual issues for a hearing before a single judge. A full hearing was held by the single judge on February 22, 1971, after which the following findings of fact were made and duly reported to the three-judge panel.

Prior to the events complained of, the plaintiff Jernigan was employed as a salesman for the defendant Economy and needed a car in connection with his work. The employer agreed to make an automobile available to the plaintiff under conditions set forth in a written agreement between them, as follows:

"AUTOMOBILE LEASE PURCHASE AGREEMENT

"STATE OF GEORGIA COUNTY OF FULTON

"This agreement entered into the day and year hereinafter set out by and between Economy Exterminating Company, Inc., (hereinafter called `Lessor'), and Alfred Jernigan, (hereinafter called `Lessee').

"Economy Exterminating Company, Inc., the Lessor, does hereby lease and demise to Alfred Jernigan, the Lessee, and the Lessee hires from the Lessor, for and during the full term of 117 weeks from date, subject to the terms and conditions hereinafter set forth, the following property complete, with standard attachments and equipment, delivery and acceptance of which is hereby acknowledged by the Lessee, viz.:

DESCRIPTION OF AUTOMOBILE

One (1) 2 door Hardtop 1968 Dodge Dart. Manufacturer's I.D. Number LH23 BBB 381609—6 Cyls CAR TOTAL PAYMENTS $1,932.81—33 payments at $58.57 INSURANCE PREMIUM $200.00 per year extra. (add 2 years insurance)

"For the total rental of $2,332.81. Payable as follows: Cash on or before delivery $20.00. Balance of $2,312.80 as follows: Total of 117 weeks or 117 payments at $20.00 per week.

"1. In the event the Lessee default in any of the above payments, or a proceeding in bankruptcy, receivership or insolvency be instituted against the Lessee or his property the full amount then remaining unpaid shall, at the election of the Lessor, become immediately due and payable. In the event the Lessee should leave the employment of the Lessor for any reason, then all rental payments paid under this agreement are considered forfeited and the company Lessor shall have the right to take immediate possession of the vehicle set out in this agreement.

"2. Lessee shall give Lessor his promissory note of even date herewith, as evidence but not payment of the installments of rental payable hereunder. This note is to contain a confession of judgment, provision for attorney's fees, a waiver of the issue and service of all process, all benefits of valuation, appraisement and exemption laws, and all rights of appeal and a release of all errors.

"3. Lessee does further agree that the Lessor shall provide insurance coverage on said vehicle during the term of this lease and that the cost thereof shall be added to the stated total rental of said automobile and shall be paid in the same installments as set out above. Until such time as all of the payments, including those for insurance, are made, the title to said vehicle shall remain in the Lessor.

"4. Lessee further agrees that at the expiration of this lease he will surrender the said property to the Lessor in as good a condition as when he received it, natural wear excepted, and if upon surrendering the same, the said installments of rental having been fully paid as herein provided, said Lessee desires to purchase said property, the said Lessor agrees to sell the same for the sum of $2332.81.

"5. The term `property' whenever used in this lease shall include any equipment, attachment, accessories and repairs placed on said property by the Lessee. No warranties have been made in reference to said property by the Lessor to the Lessee unless expressly written hereon at date of lease.

"6. Lessee shall pay, and keep said property free and clear of any and all taxes, assessments, liens and encumbrances of any nature whatsoever, shall not use the same improperly or for hire without the written consent of the Lessor, and shall give immediate written notice to the Lessor of any and all loss of, or damage to, said property; in default thereof, the Lessor shall have the right to repossess the property and hold the same pending the maturity of the above obligation, all at the expense and rise of the Lessee which said expense Lessee agrees to pay. The proceeds of any insurance paid by reason of any loss or injury to the...