Doran v. Home Mart Building Centers, Inc. , 233 Ga. 705 ( 1975 )

Undercofler, Presiding Justice.

On November 6, 1973, W. M. Griffith as agent of Home Mart Building Centers, Inc., made an affidavit before a judge of the DeKalb Superior Court to secure the issuance of an attachment against the real and personal property of the appellant in accordance with the provisions of Code § 8-109 (as amended, Ga. L. 1968, p. 1013). The attachment affidavit alleged that appellant was indebted to Home Mart Building Centers, Inc., in the sum of $108,385.43 together with interest and costs of collection, and that he is actually removing himself without the limits of DeKalb County and absconding and concealing himself for the purpose of avoiding payment of the indebtedness. An attachment bond was given in the amount of $250,000. The writ of attachment duly issued and certain personal property of the appellant was seized. An order was entered directing Doran to show cause on December 14, 1973, why final judgment should not be granted. Doran traversed the grounds of the attachment and moved to dismiss the attachment on the ground that Code § 8-602 only provides for notice subsequent to the issuance of an attachment and without affording an opportunity to be heard before property is seized. He contends that this denies him due process, equal protection and his rights to the courts under the State and Federal Constitutions. Code Ann. §§ 2-102, 2-103, 2-104 and Code § 1-815.

In Kitson v. Hawke, 231 Ga. 157, 161 (200 SE2d 703) this court in upholding the attachment statute as constitutional relied on the decision of the United States Supreme Court in Ownbey v. Morgan, 256 U. S. 94, 111 (41 SC 433, 65 LE 837, 17 ALR 873) wherein the Delaware attachment statutes were upheld as constitutional. That court stated that "a property owner who absents himself from the territorial jurisdiction of a state, leaving his property within it, must be deemed ex necessitate to consent that the state may subject such property to judicial process to answer demands made against him in his absence, according to any practicable method that reasonably may be adopted. A procedure customarily employed, long before the Revolution, in the commercial metropolis of England, and generally adopted by the states as suited to their circumstances and needs, cannot be deemed inconsistent with due process of law . .

In the Kitson case this court further said: "Moreover, the recent cases of Sniadach v. Family Finance Corporation, 395 U. S. 337 [89 SC 1820, 23 LE2d 349] and Fuentes v. Shevin, 407 U. S. 67 [92 SC 1983, 32 LE2d 556] do not stand for the proposition that every summary proceeding is a denial of due process, as contended by the appellant. Indeed, the Ownbey case is cited in Sniadach as authority for the statement that 'summary procedure may well meet the requirements of due process in extraordinary situations.’ 395 U. S. 337, 339. In Fuentes, the court stated that these situations, however, must be truly unusual, such as when 'there has been a special need for very prompt action.’ Justice Stewart noted that the Ownbey case 'involved attachment necessary to secure jurisdiction in a state court — clearly a most basic.and important public interest.’ 407 U. S. 67, 91 (Fn. 23).”

Code § 8-101 provides that "Attachments may issue in the following cases: 1. When the debtor resides out of the state. 2. When the debtor is actually removing, or about to remove, without the limits of the county. 3. When the debtor absconds. 4. When the debtor conceals himself. 5. When the debtor resists legal arrest. 6. When the debt- or is causing his property to be removed beyond the limits of the state.”

In North Georgia Finishing, Inc. v. Di-Chem, Inc., — U. S. — (95 SC 719, 42 LE2d 751), decided January 22, 1975, the United States Supreme Court held the Georgia garnishment statute unconstitutional. The basis of the decision was that the garnishment was issuable on the affidavit of the creditor or his attorney, and "the latter need not have personal knowledge of the facts. § 46-103. The affidavit, like the one filed in this case, need contain only conclusory allegations. The writ is issuable, as this one was, by the court clerk, without participation by a judge. Upon service of the writ, the debtor is deprived of the use of the property in the hands of the garnishee ...” and because there was no provision for an early hearing of the matter.

The only part of the attachment statute under attack here is Code § 8-602 which provides: "The plaintiff, his agent, or attorney at law may give notice in writing to the defendant of the pendency of such attachment and of the proceedings thereon, which shall be served personally on the defendant by the sheriff, his deputy, or a constable of the county to which said attachment is returnable, by giving him a copy of said notice at least 10 days before final judgment on said attachment, and returning said original notice with his service entered thereon to the court in which said attachment is pending ...”

In the instant case the attachment affidavit was made before a judge of the superior court asserting that Doran is actually removing without the limits of DeKalb County; that Doran absconds; that Doran conceals himself; that he is actually removing, absconds and conceals himself for the purpose of avoiding payment of the aforesaid indebtedness and that the deponent has personal knowledge of the facts and knows them to be true.

Argued January 22, 1975 Decided February 4, 1975 Rehearing denied February 18, 1975. Charles R. Smith, H. A. Stephens, Jr., for appellant. Gambrell, Russell, Killorin, Wade & Forbes, Jack O. Morse, Paul D. Hill, for appellee.

We hold that the facts in this case meet the "unusual conditions” or "extraordinary situations” tests of the Supreme Court and that Code § 8-602 is not unconstitutional for any reason asserted. Compare Mitchell v. W. T. Grant Co., 416 U. S. 600 (94 SC 1895, 40 LE2d 406) (1974).

Judgment affirmed.

All the Justices concur.