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TUCKER v. BURTON

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

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 ...


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