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TUCKER v. BURTON

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


November 12, 1970

Edythe F. TUCKER, Plaintiff,
v.
Joseph M. BURTON, Clerk D.C. Court of General Sessions and Household Finance Corporation of Suitland, Defendants

The opinion of the court was delivered by: HART

HART, District Judge:

On or about August 14 1969, defendant, Household Finance Corporation, a Maryland corporation, filed a complaint against the plaintiff, a Maryland resident, to recover the balance allegedly due the defendant on an Installment Sale Agreement contracted in the District of Columbia and guaranteed by Tucker, (GS 15536-69). The complaint alleged the Agreement had been entered into May 5, 1968, between Brown's Furniture Center, Inc., as seller, and Tucker, as guarantor, and that Household was the assignee of that Agreement from Brown's. (Household admits that the contract in its hands is subject to all defenses that Brown's would have been subject to.) In the complaint Tucker's address was given as 2503 Southern Avenue, S.E., Apt. 204, Washington, D.C. On August 14, 1969, a summons was issued to the plaintiff at the above address. On August 28, 1969, the summons was returned unserved with the notation that the address given was in Maryland.

On September 17, 1969, an amended complaint, supported by affidavit, was filed by Household which additionally alleged that Tucker was a non-resident of the District of Columbia, an allegation not contained in the original complaint. On the same date, a $1,000 bond, with approved surety was filed by Household. An alias summons was issued on the amended complaint with the address changed to 2503 Southern Avenue, Apt. 204, District Heights, Maryland. On October 13, 1969, the alias summons was returned unserved because of the Maryland address.

 On October 31, 1969, Household sued out a writ of prejudgment attachment against Government Services, Inc., attaching the wages of Tucker, pursuant to § 16-501 et seq., D.C. Code, 1967. The writ was issued by Joseph M. Burton in his capacity as Clerk of the District of Columbia Court of General Sessions, Civil Division, pursuant to the filing of the amended complaint accompanied by an affidavit in accordance with the statutory requirements of the above-mentioned provision: (1) Showing the grounds of plaintiff's claim, (2) Setting forth that plaintiff had a just right to recover what was claimed in his complaint; (3) Setting out the alleged breach of contract and the damages resulting therefrom; and (4) Stating that defendant was a non-resident of the District of Columbia.

 On November 24, 1969, Tucker filed a motion in the Court of General Sessions to quash the writ of attachment before judgment on the sole ground that she had not been served notice of the action and given an opportunity to defend same prior to the attachment. The motion to quash was not supported by affidavit. Points and Authorities in opposition to Tucker's motion to quash was filed November 26, 1969. The motion was denied December 1, 1969. On December 16, 1969, Tucker was served with the amended complaint and affidavits at 17th and New York Avenue, N.W., Washington, D.C., by a Special Process Server appointed by the Court. On January 9, 1970, Tucker answered the amended complaint and was allowed to proceed in Forma Pauperis. On January 12, 1970, the Court of General Sessions case was put on the "Ready for Trial Calendar."

 At no time has Tucker filed a traversing affidavit in the Court of General Sessions under the provisions of § 16-506, D.C. Code (1967). At no time has Tucker moved to advance her case for hearing in the Court of General Sessions.

 On May 1, 1970, Edythe F. Tucker filed in this Court a Verified Complaint for Declaratory Relief and Preliminary and Permanent Injunction against Joseph M. Burton, Clerk of the District of Columbia Court of General Sessions. In her complaint, Tucker prayed that § 16-501 et seq., D.C. Code (1967), be declared unconstitutional under the Fifth Amendment as applied to non-resident wage earners in the District of Columbia, and for injunctive relief. Since the complaint sought to declare an Act of Congress unconstitutional, a three-judge court was applied for and granted pursuant to 28 U.S.C.A. §§ 2282, 2284. At a hearing before the three-judge court on June 8, 1970, it appeared that Household Finance Corp. of Suitland was an indispensable party, and not having been named in the complaint, Tucker was given 20 days to amend the complaint and bring in Household as a party-defendant. Tucker was also directed to file a motion for Summary Judgment forthwith since it appeared that there would be no dispute as to any material fact in the case. An amended complaint was filed, bringing in Household, and the Motion for Summary Judgment by Tucker was filed.

 Defendant Joseph M. Burton moved to dismiss and defendant Household moved for Summary Judgment. Oppositions were filed to all motions.

 On October 12, 1970, a hearing was had before the three-judge court on plaintiff's Motion for Summary Judgment, defendant Burton's Motion to Dismiss and Household's Motion for Summary Judgment.

 Plaintiff contends that § 16-501 et seq., D.C. Code (1967) in its provisions for attachment before judgment is unconstitutional as it applies to a non-resident of the District of Columbia who is employed as a wage-earner in the District of Columbia. Plaintiff says that the statute, if so applied, would deprive her of property without due process of law, thus violating the Fifth Amendment.

 Plaintiff places strong reliance on Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969) to support her position.

 In Sniadach v. Family Finance, supra, a creditor filed a complaint in the Wisconsin Courts against a Wisconsin resident employed in Wisconsin. The creditor attached the wage-earner's wages before judgment. The wage-earner attacked the attachment as violative of the due process requirements of the Fourteenth Amendment.

 The Supreme Court explained the operation of the Wisconsin attachment as follows:

 

"* * * What happens in Wisconsin is that the clerk of the court issues the summons at the request of the creditor's lawyer; and it is the latter who by serving the garnishee sets in motion the machinery whereby the wages are frozen. They may, it is true, be unfrozen if the trial of the main suit is ever had and the wage earner wins on the merits. But in the interim the wage earner is deprived of his enjoyment of earned wages without any opportunity to be heard and to tender any defense he may have, whether it be fraud or otherwise."

 

The Supreme Court then went on to say:

 

"Such summary procedure may well meet the requirements of due process in extraordinary situations. Cf. Fahey v. Mallonee, 332 U.S. 245, 253-254, 67 S. Ct. 1552, 1554-1556, 91 L. Ed 2030; Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 598-600, 70 S. Ct. 870, 872-873, 94 L. Ed. 1088; Ownbey v. Morgan, 256 U.S. 94, 110-112, 41 S. Ct. 433, 437-438, 65 L. Ed. 837; Coffin Bros. v. Bennett, 277 U.S. 29, 31, 48 S. Ct. 422, 423, 72 L. Ed. 768. But in the present case no situation requiring special protection to a state or creditor interest is presented by the facts; nor is the Wisconsin statute narrowly drawn to meet any such unusual condition. Petitioner was a resident of this Wisconsin community and in personam jurisdiction was readily obtainable. * * *"

 The Supreme Court then held the Wisconsin statute, as applied to a resident debtor, not to be a statute narrowly drawn to meet an unusual condition and declared the statute violative of the due process provisions of the Fourteenth Amendment as it applied to a wage earner who was also a Wisconsin resident.

 In the case at bar the wage earner whose wages are attached is a nonresident in the jurisdiction issuing the attachment. This is within the meaning of an "unusual condition" as these words were used by the Supreme Court in Sniadach v. Family Finance Corp. This is a condition that the Congress has seen fit to consider "unusual" to the extent of requiring special protection to a creditor since at least 1901 (See 1901 Code, § 445 et seq.)

  With the "unusual condition" established, we examine § 16-501 et seq., D.C. Code (1967) to see whether or not, under Sniadach v. Family Finance Corp., the statute is so narrowly drawn as to meet the requirements of due process as to notice to the debtor and opportunity to be heard on all aspects of the claim on which the attachment before judgment is based.

 § 16-501, D.C. Code (1967), as it applies to the instant case, provides:

 

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

 

* * *

 

"(2) a debt; or

 

* * *

 

"(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 affidavits shall comply with the following requirements:

 

(1) show the grounds of plaintiff's 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 credits of the defendant as may be necessary to satisfy the claim of the plaintiff."

 § 16-502, D.C. Code (1967) provides for notice as follows:

 

"(a) A writ issued pursuant to section 16-501 shall require the marshal to serve a notice on the defendant, if he is found in the District, and on any person in whose possession any property or credits of the defendant may be attached, to appear in the court on or before the twentieth day, exclusive of Sundays and legal holidays, after service of the notice, and show cause, if any there be, why the property so attached should not be condemned and execution thereof had. The marshal's return shall show the fact of the service.

 

"(b) If the defendant is returned 'Not to be found,' the notice shall be given by publication * * *."

 § 16-505, D.C. Code (1967), gives to the defendant or any other person interested in the proceedings who is not satisfied with the sufficiency of the surety or with the amount of the penalty named in the bond the right to apply to the Court for an order requiring plaintiff to post additional bond with surety approved by the Court.

 § 16-506, D.C. Code (1967) provides:

 

"If the defendant files affidavits traversing the affidavits filed by the plaintiff the court shall determine whether the facts set forth in the plaintiff's affidavits as ground for issuing the attachment are true, and whether there was just ground for issuing the attachment. When, in the opinion of the court, the proofs do not sustain the affidavit of the plaintiff, his agent, or attorney, the court shall quash the writ of attachment. This issue may be tried by the court or a judge at chambers after three days' notice. The issue may be tried as well upon oral testimony as upon affidavits. If the court deems it expedient, a jury may be impaneled to try the issue."

 This Court interprets § 16-506, D.C. Code (1967) as meaning exactly what it so clearly says, that is, a non-resident wage earner whose wages have been attached before judgment may file affidavits traversing the affidavits filed by plaintiff. We interpret the statute to read that defendant may in his affidavit traverse any matter contained in plaintiff's affidavit, including but not limited to, the ground of plaintiff's action, whether plaintifif has a just right to recover what is claimed in the complaint, whether the contract was breached and the damages resulting therefrom, if any, and whether the defendant is a non-resident of the District. In the case at bar the statute (§ 16-501, D.C. Code (1967) required plaintiff Household to set forth in its affidavit supporting the attachment each of the above points and § 16-506 D.C. Code (1967) says plaintiff's affidavit may be traversed by debtor. The statute does not by words or by implication limit the matters in the attaching plaintiff's affidavit which the defendant debtor may traverse.

 In the case at bar this Court interprets § 16-506 D.C. Code (1967) as permitting Mrs. Tucker in GS 15536-69 to traverse each of the following by affidavit:

 

1. The grounds of Household's claim;

 

2. Household's claim that it had a just right to recover the amount claimed in the complaint;

 

3. That the contract sued on had been breached and that damages had resulted therefrom;

 

4. That Tucker was not a resident of the District of Columbia.

 As to notice to Tucker of the pendency of the action and of the attachment, Tucker's employer notified Tucker promptly upon the service of the attachment on the employer. This is a practice that may reasonably be expected of employers whose employees' wages are attached either before or after judgment.

 Further § 16-502 D.C. Code (1967) requires that notice be served on the defendant if the defendant is found in the District and, if the defendant is returned "Not to be found," to publish against the defendant "at least once a week for three successive weeks or oftener, or for such further time and in such manner as the Court orders."

 It thus appears that the realities of the situation plus the provisions of § 16-502, D.C. Code (1967) provide for notice to a defendant whose wages are attached before judgment in as expeditious a manner as is reasonably practical.

 A defendant wage earner may traverse the attaching creditor's affidavit just as soon as the wage earner has knowledge of the attachment, which, in the case at bar, was almost immediately after the attachment was served on the employer.

 When a defendant, by affidavit, traverses the creditor's affidavit, § 16-506, D.C. Code (1967) provides that the issue raised by the traverse may be tried by the Court or a Judge after three days notice. We interpret the provisions providing for a hearing on the issue raised by the traverse as requiring an expedited trial of the issue so raised at the expiration of the three days notice or very shortly thereafter, depending on the exigency of the situation.

 § 16-506, D.C. Code (1967) also provides that the issue raised by the traverse may be tried before a jury if the Court deems same to be expedient. We interpret this provision to give a Court reasonable discretion as to whether or not a jury will be empaneled to try the issue raised by the traverse, but, of course, this discretion cannot be abused. Where a jury trial is requested, this section would require the granting of the request unless good cause to the contrary existed.

 We hold that § 16-501 et seq., as it applies to a non-resident wage earner in the District of Columbia is a statute narrowly drawn to meet an unusual condition and is not violative of the due process clause of the Fifth Amendment to the Constitution of the United States.

 Plaintiff's Motion for Summary Judgment is denied.

 Defendant Burton's Motion to Dismiss is granted.

 Defendant Household Finance Company's Motion for Summary Judgment is granted.

 Counsel will present an appropriate order.


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