Midland Finance of Cumberland v. Green

• Decision Date: 13 July 1971
• Docket Number: No. 5643.,5643.
• Citation: 279 A.2d 518
• Parties: MIDLAND FINANCE OF CUMBERLAND, a corporation, Appellant, v. Larry W. GREEN, Appellee.
• Court: D.C. Court of Appeals

279 A.2d 518

MIDLAND FINANCE OF CUMBERLAND, a corporation, Appellant, v. Larry W. GREEN, Appellee.

No. 5643.

District of Columbia Court of Appeals.

Argued May 17, 1971.

Decided July 13, 1971.

R. K. Millstein, Washington, D. C., for appellant.

Richard M. Sharp, Washington, D. C., with whom William H. Dempsey, Jr., Washington, D. C., was on the brief, for appellee.

Before GALLAGHER, NEBEKER and PAIR, Associate Judges.

NEBEKER, Associate Judge:

This is an appeal from an order granting a motion to quash a prejudgment writ of attachment on the wages of a nonresident for a debt incurred outside the District of Columbia. Although a constitutional challenge is made under Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), to the statute permitting such attachment, we do not decide the case on that point. The asserted need to reach the constitutional point has been dissipated by the recent adoption¹ of Superior Court Civil Rule 64-I, which eliminates the vices asserted.

In August 1970, appellant, a Maryland finance company, brought suit against appellee, a resident of North Carolina, alleging that he owed the overdue balance on a promissory note which had been executed in Maryland. Appellant then filed an affidavit and a bond in compliance with D.C. Code 1967, § 16-501² and was granted a "Writ of Attachment Before Judgment" by the clerk of the trial court. No notice was given to appellee before issuance of the writ.³

Since appellee was employed by the General Electric Company in North Carolina, the writ attaching his wages was served on the company's resident agent in the District of Columbia. The company, on behalf of its employee,⁴ then moved to quash the writ on the grounds that (1) the doctrine of forum non conveniens should be used to dismiss the suit since the action had no substantial connection with the District of Columbia, and (2) the D.C.Code provisions which permitted prejudgment attachment of his wages without prior notice and a hearing violated his right to due process.

The trial court granted appellee's motion without expressing its reasons. Since the trial court was silent as to the actual basis for its decision, we are reluctant to conclude it reasoned that the statute is unconstitutional. In the absence of an expressed constitutional holding, we will assume relief was afforded for asserted nonconstitutional reasons, and therefore examine whether appellant's contention of forum non conveniens could properly have been the basis for the order on review.

This court has repeatedly held that trial court decisions respecting forum non conveniens shall not be disturbed on appeal except for a clear abuse of discretion. Hardy v. Hardy, D.C.App., 202 A.2d 389 (1964); Wilburn v. Wilburn, D.C.App., 192 A.2d 797 (1963); Depenbrock v. Safeway Stores, Inc., D.C.Mun.App., 172 A.2d 561 (1961); Walsh v. Crescent Hill Co., D.C.Mun.App., 134 A.2d 653 (1957). We find nothing in this case which reflects such an abuse by the trial court.

Indeed, this case is most appropriate for application of the doctrine. The only connection the litigation has with this forum is that the garnishee — appellee's employer — had a resident agent in the District of Columbia upon whom service of the writ was obtained.⁵ In addition, it is important to consider the impact which suits such as this have upon the work load of the District of Columbia courts. As the Supreme Court declared in Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947):

"Factors of public interest also have place in applying the doctrine [of forum non conveniens]. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. * * *" See also Gross v. Owen, 95 U.S.App.D.C. 222, 221 F.2d 94 (1955). Accordingly, the relief sought could have been granted on this basis and we sustain that action. We note that quashing the writ of attachment under these circumstances was tantamount to dismissal — the usual relief afforded in forum non conveniens cases.

Thus, we do not reach the constitutionality of the prejudgment garnishment procedures utilized in this case.⁶ The order appealed from is

Affirmed.

1. D.C.Code 1967, § 16-581 (Supp. IV, 1971).

2. This section provides in pertinent part:

"(a) This section applies to any civil action in the * * * District of Columbia Court of General Sessions, for the recovery of:

* * * * *

"(2) a debt; * * *

* * * * *

"(b) In an action specified by subsection (a) of this section, the plaintiff, his agent, or attorney, may file an affidavit as provided by subsections (c) and (d) of this section either at the commencement of the action or pending the action.

"(c) The affidavit shall comply with the following requirements:

(1) show the grounds of plaintiffs' claim:

(2) set forth that plaintiff has a just right to recover what is claimed in his complaint;

* * * * *

(5) where the action is to recover damages for breach of a contract set out, specifically and in detail, the breach complained of and the actual damage resulting therefrom.

"(d) The affidavit shall also state one of the following facts with respect to defendant:

"(1) defendant * * * is not a resident of the District, * * *;

* * * * *

"(e) Before a writ of attachment and garnishment is issued, the plaintiff shall first file in the clerk's office a bond, executed by himself or his agent with security to be approved by the clerk, in twice the amount of his claim, conditioned to make good to the defendant all costs and damages which he may sustain by reason of the wrongful suing out of the attachment; * * *

"(f) If the plaintiff files an affidavit and bond as provided by this section, the clerk shall issue a writ of attachment and garnishment, to be levied upon as much of the lands, tenements, goods, chattels, and...