Mrs. Vesta G. Johnston v. Calvin S. Byrd and Ray D. Bridges
354 F.2d 982
5th Cir.
1965
Check Treatment

*1 982 announcement, “Sam, 306-309, 1190, L. 301, 2 the officers’ bare at 78 S.Ct. “notify [occupant] give police,” arresting did not 1332, officers Ed.2d they purpose of that admission demanded “proper notification of apartment purpose for the of ar- entry, a demand and [make] ”* * * resting States, him.” Miller v. United open house the inmates 310, supra, at 1196. 357 U.S. at 78 S.Ct. Bartlett, 10 Cush. v. Barnard Reynolds, There should been reference have 503; v. see Commonwealth gov- Fortunately warrant. 190, 196. require 1876, 120 These Mass. ernment, supplied himself designed the defendant course, allow are, ments testimony justifying court’s de- open opportunity the householder particular nial of his motion in this re- his entry. door rather than suffer a forcible spect. He doors were testified that the States, See Masiello United v. only thin so that not heard could he have U.S.App.D.C. 57, 121. 115 F.2d 317 knocking door, “if the street Assuming court Massachusetts that the you spoke your even I would have heard permit exceptions, would see Common- voice,” normal and that if officers Mass.1965, Rossetti, N.E. 211 v. wealth rapped they had so much as and said were apprehension 2d a reasonable police opened he would have commonly regarded harm is anas excuse By door. this he doubtless announcing for the presence. their officers’ not persuade the court of the correctness of California, Ker See v. they his assertion did He that neither. supra, 1623; 39-40, at 374 U.S. complain if, instead, cannot the court States, supra,

Miller v. United U. 357 both, police chose believe that the did S. at However, S.Ct. 1190. and took the defendant at his that word testimony nowas here that the officers hear, he did not he when could reason- safety. feared for government’s Indeed, their ably expected govern- have been to. The suggestion present that ment cannot be faulted for deficiencies they did is difficult reconcile having prejudicial effect. they fact that announced themselves Affirmed. and waited at all. Cf. United States v. Barrow, E.D.Pa.1962, F.Supp. A ten-second wait seems anus

exceedingly short time under cir most present case, cumstances. In the how ever, they there was evidence knocked, the officers heard mov someone ing in apartment. JOHNSTON, defendant’s Mrs. Appellant, Vesta G. defendant in fact conceded that had he moving been might about. Ten seconds Ray Bridges, Calvin S. BYRD and be a short for him to time both reach Appellees. doors, but ten seconds of silence in this No. 22007. case could occupant mean that the had Appeals United States Court of started, not even and hence was Fifth Circuit. going to. Under the we circumstances Dec. will not rule as matter law that it unreasonable con officers to period clude after of ten seconds they going were not to be admitted. Cf. States, McClure v. Cir., cert. den. 380 13 L.Ed.2d

Although defendant does not point,

raise the we must observe that *2 the and laws

Constitution by required 28 U.S.C.A. § States as judg- Byrd Appellee a obtained civil against appel- Alabama court ment in an of some amount lant’s husband the alleges per- $31,000. by property claimed her and valued sonal $10,000.00 and was seized excess Ray by co-appellee, advertised for sale County, Bridges, of Mobile Sheriff As a she a of Fieri result writ Facias. thereby a rendered she claims that bankrupt unable to contest literal and pursuant Title the seizure Section Code, 1940, which of the Alabama requires posting the bond property. exceed double the value the alleges Appellant hus- that her further band, Johnston, B. J. prayed appeal civil has for an to the from, Supreme the Court against rendered him but that supersedeas he is to make a unable bond pending appeal. complaint fails the sought any allege the Mobile relief in the Circuit Court of Alabama, County, informed the that she property her or claim to the Sheriff sought bring to the atten- otherwise court, anyone tion of or Sheriff proceedings, her else connected with the ownership claim of interest or property. The Alabama law deals with by remedies after the issuance of writs Alabama courts which levy personal property. such a In Miss., Walley, Leakesville, party person Ben Wil- case a to the H. who is not Mobile, Grayson, Ala., appellant. for liam writ who title but claims paramount title lien to the or interest (on brief) Allan R. Leon G. Duke property of the defendant Cameron, Ala., appellees. Mobile, may try to such state court writ title TUTTLE, Judge, Before Chief and by property complying sale with Judges. “ GEWIN, and * * RIVES * executing and good bond two and sure- sufficient payable ties In double PER CURIAM: trict Court for the Alabama erred appeal The sole is whether the United States for want of dismissing Southern presented subject-mat- District by appel- Dis- this than the value of the [*] claimed Appellant [*] double the amount [*] ” an injunction levied writ case more on and pro- money damages or, specifically, hibiting more the sale ter “arising alleged wrongful jurisdic- under” a suit seizure. She whether 1331,1claiming tion under U.S.C.A. under execution but third claimed rights her person that the Alabama violates requires the execution of affi an equal protection as claimant, davit and but also guaranteed by Fifth and Fourteenth upon confers claimant by requiring post Amendments have the levied on delivered into granted ap bond. The District Court pellee’s possession plain and casts *3 of motion to dismiss for want proof tiff in execution the burden of as to subject-matter jurisdiction. prop whether the is claimed the Essentially, erty presents this case of the in the writ and is a contest as to who owns the title liable to its satisfaction. Ala Code of personal property certain located within bama Tit. sections 1168 and 1169. deter Alabama. State of law generally,1 statutory pro As is true question, mines that law. federal ceeding supplementary or cumulative A often federal law is “lurk may and the claimant also resort to his ing background” every case. ordinary by separate remedies action at jurisdiction In order to invoke the trespass, detinue, in trover or federal court must be “a substantial equity.2 'directly' upon claim founded federal Hood, Bell v. law.” To accord to the claimant the benefits (1946) ; Gully 90 L.Ed. 939 First obtaining possession property, of the Bank, National casting proof and of burden of on (1936); Jordan, 81 L.Ed. 70 Pierre v. execution, and to un avoid (9 1964) 951; Moore, Cir. necessary delays or frivolous en [1], (2nd Federal Practice at 1648 ff8.09 process, entirely forcement of lawful it is 1964); Wright, ed. Federal Courts 17§ require reasonable for the statute (1963). a bond from the To claim that claimant. Any questions sought federal requirements to maintain purely be raised are statutory proceeding appel and the incidental efforts of the inability bond, deprive to make that enjoin a Sheriff’s sale ato of her without money judg state writ to recover deny pro equal law or ment in the federal court. not, opin my tection of the laws does judgment of the District Court is ion, give controversy rise to a substantial affirmed. as to the effect or construction of the RIVES, Judge (concurring Constitution, and is no more than a specially): give attempt colorable I, therefore, providing federal court.3 concur personal property of trial as to of affirmance. 1331(a) 1. 28 § U.S.C.A. 1. See 33 C.J.S. §§ Executions original “The district courts shall have State, 2. Lassiter v. 106 Ala. jurisdiction of all civil actions wherein 725, 726; 17 So. First National Bank controversy the matter exceeds the sum Burch, 1939, of Mobile v. 237 Ala. $10,000, or value of exclusive interest 188 So. costs, and tion, arises the Constitu- laws, or treaties controversy 3. That a substantial re quired, States.” see cases collected footnote 36 to 28 U.S.C.A.