Cochrane v. WESTWOOD GROCERY CO

394 Mich. 164 (1975)

229 N.W.2d 309

COCHRANE v. WESTWOOD WHOLESALE GROCERY COMPANY

Docket No. 55572, (Calendar No. 2).

Supreme Court of Michigan.

Argued November 4, 1974.

Decided May 27, 1975.

Abraham Satovsky, for plaintiff.

Kahn & Kahn (by Kenneth F. Kahn and Larry E. Powe), for defendant Westwood Wholesale Grocery Company.

PER CURIAM:

The threshold issue is whether the pre-judgment garnishment procedure on February 13, 1973 as then provided in MCLA 600.4011; MSA 27 A. 4011 and GCR 1963,[1] 738 was unconstitutional as violative of the Fourteenth Amendment or Const 1963, art 1, § 17.

Subsequent to the oral arguments herein, a three-judge panel, United States District Court, Eastern District of Michigan, Southern Division, has found that the Michigan garnishment procedure "violates due process and is therefore unconstitutional". Writing for the court, Judge Charles W. Joiner concluded:[2]

"Thus, we hold that, insofar as M.C.L.A. 600.4011 and G.C.R. 738 permit the pre-judgment garnishment of funds in which the claimant has no interest without a bond requirement to protect the owner of the funds and without an opportunity for a prompt hearing to test the merits of the claim and the validity of the garnishment, the Michigan garnishment procedure violates due process and is therefore unconstitutional under Fuentes and Mitchell."[3]

One day later, on January 22, 1975, the United *166 States Supreme Court rendered its decision in North Georgia Finishing, Inc v Di-Chem, Inc, 419 US 601; 95 S Ct 719; 42 L Ed 2d 751 (1975), finding the Georgia pre-judgment garnishment procedure to violate due process. Because the Georgia procedure was similar to Michigan procedure, the United States Supreme Court decision is dispositive of the issue before this Court.

Further, effective as of April 1, 1975, an amendment to the challenged statute now provides:

"A writ of garnishment may be used before judgment only as provided in this subsection. Upon ex parte application showing that the person against whom the claim is asserted is not subject to the judicial jurisdiction of the state or, after diligent effort, cannot be served with process as required to subject him to the judicial jurisdiction of the state, a copy of the writ of garnishment shall be served upon the person against whom the claim is made in the same manner as provided by rules of the supreme court for service of process in other civil actions in which personal jurisdiction over the defendant is not required. Upon rendition of judgment in the principal action, the obligation of property garnished shall be applied to the satisfaction of the judgment."

Therefore, further analysis of the issue would not only be superfluous to jurisprudential clarification but might even generate clouds upon the vista.

We affirm the order quashing writ of garnishment and remand to the trial court for such order as is required and is consistent with this finding.

T.G. KAVANAGH, C.J., and WILLIAMS, LEVIN, M.S. COLEMAN, and J.W. FITZGERALD, JJ., concurred.

SWAINSON, J., and the late Justice T.M. KAVANAGH took no part in the decision of this case.

[1] Also pertinent was MCLA 600.4045; MSA 27 A. 4045 providing for dissolution of garnishment by posting of a bond.

[2] Douglas Research & Chemical, Inc v Solomon, 388 F Supp 433 (1975).

[3] Fuentes v Shevin, 407 US 67; 92 S Ct 1983; 32 L Ed 2d 556 (1972); Mitchell v WT Grant Co, 416 US 600; 94 S Ct 1895; 40 L Ed 2d 406 (1974). REPORTER.