403 So. 2d 258 | Ala. Civ. App. | 1981
Events from which this case arose were: A truck was seized by officers of Chilton County as contraband under §
On the day of filing, notice of the seizure of the truck was given by phone by an attorney in Chilton County to vice president Hill of the Bank. The informer was not then counsel for the Bank. However, Hill sent a copy of the security agreement and a copy of the original certificate of title on the truck, held by the Bank as lienor, to the informing attorney who sent them with a letter to the district attorney handling the case.
A day later the district attorney wrote the attorney that the petition had already been filed and that the Bank could file its claim of interest, but the action would continue because it was believed that the truck would bring more at public sale than the amount of the Bank's claim. Publication in a local newspaper for three weeks was ordered and made, notifying those having an interest to file claims.
The attorney passed the information of the letter and its contents to Hill of the Bank with advice to file a claim. The final date for filing claims passed with no claim filed. Decree pro confesso was entered, with an order of condemnation and sale some three weeks thereafter. Notice of sale was published a week later. The Bank filed its claim and motion to set aside judgment on the day of sale through the same attorney. *260
An oral hearing was subsequently held. The court found that notice by publication was given to all claimants; that the Bank had actual notice of the seizure and filing of the forfeiture petition and failed to file its claim within the period allowed. The claim was denied.
The Bank first contends that as the holder of a properly registered security interest, it was entitled to be served with notice of the filing of the forfeiture proceeding and that constructive service by publication was constitutionally insufficient.
We begin our response to the Bank's contention by pointing out that though §
Similar proceedings for condemnation of seized conveyances have been brought for many years under §
Substituted services for publication, or any other authorized form, may be sufficient to inform parties of the object of proceedings taken where property is once brought under the control of the court by seizure or some equivalent act. The law assumes that property is always in the possession of its owner, in person or by agent, and it proceeds upon the theory that its seizure will inform him, not only that it is taken into the custody of the court, but that he must look to any proceedings authorized by law upon such seizure for its condemnation and sale. . . . In other words, such service may answer in all actions which are substantially actions in rem.
This statement in Pennoyer v. Neff, must now be viewed in light of more recent application of the due process clause of the fourteenth amendment of the U.S. Constitution to state action. The supreme court discussed the history of forfeiture both at common law and statute in the cases of Calero-Toledo v.Pearson Yacht Leasing Co.,
However, the statute at hand is not so penal as to provide for forfeiture of property used in the commission of a crime regardless of the innocence of the owner or lienholder. Section
"The fundamental requisite of due process of law is the opportunity to be heard." Grannis v. Ordean,
When notice is due, process which is a mere gesture is not due process. Publication in a newspaper with only local circulation, of an action against a motor vehicle without reference to the name of the owner, can hardly be said to be a reliable means of informing lienholders foreign to the area of circulation that their security interest is before the court.
The lienholder may be said to stand in a different position than an owner. Publication as a means of notice to an owner of property that condemnation of his property is before the courts has been accepted as constitutionally sufficient. However, the theory in such cases has been that an owner keeps up with his property and knows when it has been seized by the State. Therefore publication of an action of forfeiture against it is merely supplemental to actual notice already conveyed by the seizure. Mullane v. Central Hanover Bank Trust Co., supra;Pennoyer v. Neff, supra. Such presumptive theory of supplemental notice by publication should not prevail against a lienholder not in possession, as in this case.
We are dealing in this case with a lienholder whose lien is recorded on the certificate of title issued by the State Department of Revenue. It is on record in that department and the names of the lienholder and owner are easily obtainable. The State by statute has proclaimed that forfeiture of a conveyance encumbered by a bona fide security interest is subject to that interest if the secured party neither had knowledge of nor consented to its illegal use. Such interest can only be protected by due process notice of the seizure and action for condemnation. We hold that notice by publication of a pending action against the property does not reasonably satisfy the requirement of due process under the fourteenth amendment with respect to a lienholder whose name and address are known or reasonably ascertainable. Robinson v. Hanrahan,
The notice we refer to here is not that required in the service of a summons and complaint upon a defendant party in a suit at law under Rule 4, A.R.C.P. It is such notice as is provided for in Rule 5, A.R.C.P. In fact, Rule 5 (a) refers to the giving of notice to the party having custody or possession in actions begun by seizure of property in which no person is named as defendant. A lienholder of record should be entitled to the same notice.
What we have said thus far is not dispositive of this case in light of its peculiar facts. The trial court refused to set aside its judgment because the Bank had actual notice of the filing of the action against the property. Such finding is supported by the undisputed evidence. Vaughan v. Fuller,
We affirm the judgment of the trial court.
AFFIRMED.
BRADLEY and HOLMES, JJ., concur.