Osmond v. Spence

DUSEN, Judge, Before VAN Circuit LAYTON, and Judges. and District WRIGHT OPINION Judge. LAYTON, District Stoppel- Elwyn Evans, Jr., and S. John Community Legal Aid So- man purported class action This is Del., Wilmington, plain- Inc., ciety, uncon plaintiffs declared to have six1 Osmond, tiffs, and Marie L. Louis H. Delaware and statutes stitutional certain Burton, Stanley and Jesse L. M. William permit rules which Court (Dawkins) Barbour, Mae Townsend, Stella M. judgments by Shelly J. Clarence W. attorney. al have Plaintiffs warrant Dehoyos Henry DuBois, D. and Marie C. perman preliminary and prayed for so Karl B. Ebert. restraining Pro injunctions the recording ent Sullivan, Roeberg, & Potter David thonotary and Sheriff Roeberg, Wilmington Del., plaintiffs, executing upon judgments. Walsh, and Katz. John and Joan Joel 2281, a to T. Sec. Pursuant 28 U.S.C. Bader, Bader, Dorsey & John M. three-judge to hear and named court was Kreshtool, Wilmington, Del., plain- decide the case. Gregg. tiff Robert F. “DBA”, Bankers Association Delaware Wier, Jr., J. Bertram William S. association, per- unincorporated was Halberstadt, Wilmington, Del., for the plain- opposition mitted to intervene Union, appear- American Civil Liberties ing injunc- preliminary for a tiffs’ motion plaintiffs behalf as amicus Although certain creditors tion. upon application curiae. parties de- intervened fendant, purposes practical DBA for all Joseph Longobardi, Longobardi J. & defense of this action. has taken over the Schwartz, Wilmington, Del., for defend- Spence. ant Ernest S. Temporary Restraining A Order was Daley, single judge Robert E. Asst. of this Court New Castle entered County Atty., Wilmington, Del., 4, 1970,2 restraining for de- on November fendants, defendants, Riley. deputies Paul E. Neill and Eleanor nominal their original plaintiffs superseded previous 1. There were six orders This order subsequent July 28, (as nine intervenors. on amended entered August 12, August 1970) on acting in the State with them ter have been instituted concert all others However, authority find no Courts. from: 4 justi- the doctrine of abstention under (1) Executing selling any real fying a referral of this case to the State including wages, property, personal cir- in view of the Courts for decision up- plaintiffs of the named individual presented by this record. Cf. cumstances pur- judgments docketed on confessed Hargrave, 8, 1971, 401 March Askew v. Del. 10 2306 and suant to Del.C. Sec. 196; 556, 476, 28 L.Ed.2d 91 S.Ct. U.S. (Civil) 58(b); Super.Ct. R. Education, 373 McNeese v. Board Serving (2) fa writs of attachment fi 668, 1433, 10 L.Ed.2d 622 83 S.Ct. by Prothonotary on con- issued (1963). judgments pursuant fessed docketed statute and above-cited Delaware JURISDICTION employers rule of court on of confessed judgment wages; debtors to attach Although jurisdiction in ac- our this (3) Delivering money being now col- by question either into tion is not drawn by employers lected various nevertheless, side, we, have considered class of confessed debtors diversity being point. neither There have confessed who necessary jurisdictional amount nor the type described above docketed jurisdic- 1331, under 28T. U.S.C. Sec. them, to the creditors who must, all, if found on the Civil tion at wage attachments; have issued Rights Act, and, particularly, 28 U. more (4) 1343(3).5 never The order there has was S. C. Sec. While issued without prejudice interpretation Prothonotary as been definitive wage scope Supreme Sheriff of this serve section attachments Court, question before that confessed was C.I.O., Hague 496, in cases Court in v. 307 U.S. where could be demon- 954, strated that 59 L.Ed. How debtor had understand- ing^ right ever, waived his so views Justices were notice and an opportunity majority opin prior (or diverse that no be heard there was subsequent) judgment.3 point. ion on this Justice Stone’s con curring opinion, other which two Following on the merits joined, frequently Justices has cited the full 23, Court on December authority proposition Sec. Temporary Restraining Order was 1343(3) jurisdiction affords in cases in continued until final on March volving personal, property, but not 1, 1971, or disposition. until final rights.6 Because this nullify suit seeks to Del.C. Sec. 2306 and Court Rule inescapable “The conclusion seems 58(b), giving long- Del.C.Ann. right to a rise immunity whenever the is one standing practice in personal Delaware liberty, enter- dependent ing judgment upon notes with infringement warrant of its existence attorney attached, might think it rights, jurisdiction bet- there Excepted * * * 3. from this order were depri- executions son: To redress the judgments on entered on such any law, vation under color of State stat- accompany- clauses in ute, ordinance, bonds regulation, custom or us- ing mortgages. real estate age any immunity right, privilege secured the constitution of the United Bozanich, We think Reetz v. 397 U.S. by any Congress pro- States or act of 90 S.Ct. 25 L.Ed.2d 68 is dis viding equal rights of citizens or of all tinguishable because the case us before persons jurisdiction within substantially involves same claim United States.” under the Delaware State Constitution. original 5. “The District Courts shall have 6. Jurisdiction for the vindication of such jurisdiction property rights civil actions authoriz- must founded on Sec- per- ed law to be commenced tion 1331. (school (D.Conn.1970) (Emphasis sup- F.Supp. 114 district court.” involving grooming in- p. dress and rules plied.) See P. privacy). decisions Some vade language fur- the statute While impair involve license revocations basis for the distinction above nishes no occupa- pursue personal nevertheless, judicial drawn, think- sound Raich, g., See, Truax v. tion. e. only prac- approved ing it7 (1915); harmonizing the section tical method (2d Lomenzo, F.2d 959 Cir. Gold v. general question juris- with the federal license); 1970) (real estate broker’s statute, dictional U.S.C. Sec. (5th Saunders, Mansell 372 F.2d jurisdictional always which has had franchise); (garbage Burt 1967) Cir. Eastman, 421 F.2d amount. See Eisen v. (2d York, City F.2d Cir. New 1969). (2d In that 563-566 Cir. 1945) (architectural permit); Glicker case, Judge Friendly, speaking for the Michigan Comm’n, Liquor Control 160 Circuit, after a careful review Second license); (6th 1947) (liquor F.2d 96 Cir. cases, 1343(3) of the held that af- Sec. Taylor see York Transit also New v. jurisdiction forded no (E.D.N.Y. Authority, F.Supp. 309 785 involving could action landlord base an 1970) (dismissal employment with rights against city dis- authority). transit Others involve con- trict rent and rehabilitation director chal- rights. See, g., tractual v. McGuire e. lenging constitutionality city of the Sadler, 1964) (5th F.2d 902 Cir. 337 rent control law and actions taken under (suit against Land Commissioner of Tex- view, see, In line law.8 with this e. illegally changing boundaries); as for g., National Land Investment & Co. v. City Malden, Cobb v. 202 F.2d 701 Specter, (3d 1970); 428 F.2d 91 Cir. (1st 1953) (teacher’s suit Cir. Corp. Pious, Bradford Audio v. 392 F.2d city pay agreed-upon for refusal to new (2d 1968) (seizure 67 Cir. bank de salary). posit) ; Long, 766, Bussie v. 383 F.2d (5th 1967) (class 769 Cir. action pointed Eisen, But as out in be- alleging Louisiana Tax Commission non tween these extremes lie dozens of fac- members) ; Hig feasance Howard v. tual situations which can viewed gins, (10th 1967) (dep F.2d 379 227 Cir. equally complaining “about well as of a rivation while sheriff’s $500.00 deprivation personal liberty to custody); Morgan, Gray 172, v. 371 F.2d pursue calling of one’s choice as emolu- (7th 1966) (attack 174-175 Cir. on Wis deriving ments 421 therefrom.” F.2d at tax); Handley, consin income Ream v. among following these, 565. And (7th 1966) (slander 359 F.2d 728 Cir. analogous are somewhat case at title to real officials). estate state See, bar. Housing v. Durham Caulder Authority, (4th 1970) 433 F.2d Cir. 998 And, conversely, a line cases exists (jurisdiction was assumed this suit upholding jurisdiction federal court un- prevent eviction without 1343(3) der Section where the as- distinction); without reference purely personal. See, serted was g., e. City Housing Escalera v. New York Au- Carr, Baker v. 369 U.S. thority, 1970) (2d 425 F.2d 864 Cir. (1962) (equal 7 L.Ed.2d 663 (eviction poor person aof without vote); Pape, Monroe v. 365 U.S. process); Laprease violates due 81 (1961); 5 L.Ed.2d 492 Raymours Co., Inc., v. Furniture F. 315 Tenney Brandhove, v. 71 Supp. (New (N.D.N.Y.1970) York (free- permitting speech dom of sheriff de- petition statute seize for redress grievances); Fatsi, faulting purchaser’s Crossen conditional v. house- see, instance, Proper Scope frequent- 7. But The 8. The Eisen decision the most is Bights Act, ly of the Civil 66 Harv.L.Bev. cited discussion of Justice Stone’s dis- 1343(3) overlap 1290-91 tinction and the between and 1331. OF court order JUDG- hold articles without a vio CONSTITUTIONALITY Santiago McElroy, process); BY ENTRY v. MENTS OBTAINED lates (E.D.Pa.1970) F.Supp. (Penn NOTES UPON OF JUDGMENT sylvania applied poor distraint WARRANT ATTORNEY statute OF persons); Shapiro, F. McClellan v. entering judgments (D.Conn.1970) (jurisdiction Supp. 484 attorney warrant accepted complaint recipi welfare typical In a common one in a case, this State. alleging they equal ents were denied or there attached the note protection of the laws amendment to (frequently an debt other evidence Jones, statute); welfare Klim state contract), a fine installment sales or loan F.Supp. (N.D.Cal.1970); Swarb print follows: clause somewhat as Lennox, (E.D.Pa. F.Supp. we, FURTHER, or AND I whether 1970) (Pennsylvania judgment by con makers, as maker or or endorser or hereby, jointly Roberge procedure); fession Phil hereof, do endorsers brook, F.Supp. 608, (D.Vt.1970) severally, empower authorize public amounts, (loss of assistance Peace in Justice of the the State poor person, of a to a case restraint on elsewhere, Delaware, with or freedom). personal process, judgment, enter without any Clerk, Prothonotary Attorney Indeed, depending on one’s view Court of Record State facts, may argued logic with some Delaware, elsewhere, or with or with- complaints here, that all the us in before me, us, process, appear out any or or volving they do, alleged as the unconsti judgment us, of and to confess deprivation rights tutional prop of the against me, us, or the above amount e., erty, land, automobile, i. boats and any Superior of us in of the Court wages, least, on their at fail face Delaware, elsewhere, the or of State personal liberty meet the test laid down obligation, legal in- the above with ed.9 by Justice Stone elsewhere discuss terest, together percent five with argument persuasive But a more can (5%) of of the and the amount debt upon proposition fee, be built the at and interest as counsel the suit note, his, plaintiffs of of this favor the holder here do seek to recover her, executors, its or their administra- property (land, automobiles, as such assigns, tors, any at time successors or boats, wages, etc.) by way seized of hereof, and of the after the date last, process. They attachment or execution time, any term next or other or deny do not the existence of a debt. stay until with of the date execution they complain essentially What of is de- due; hereby payment I is and or we do attempt fendants’ to collect it a meth- jointly severally and release all and rights personal od of violative their any all or errors in manner of error hearing. notice and judgment issued and execution or to be issued thereon. AND FUR- consideration, After careful and THER, hereby I or we do waive doubt, while not free from it is our con- any exemption all benefit of and laws peculiar clusion that facts of this Delaware, elsewhere, of the of or State purview case come within the of Sec. AND the maker makers and or endors- 1343(3) presently interpreted by hereby er or each waive endorsers Accordingly, authorities. we conclude presentment, and notice dis- demand of jurisdiction there is in this case. honor. It should be noted that Sniadach recog- ther inroads on this distinction Family Finance, nizing deprivations property that even of (1969); 23 L.Ed.2d 349 Gold deprivation personal can amount to a of berg Kelly, rights they taking where result of ; (1970) 25 L.Ed.2d the minimal of life. necessities Santiago supra, McElroy, made fur- Wooley on respect laid down provisions with In accordance Practice, Chapter Inso- XX. 58(b),10 Delaware the holder Superior Rule Court ascertained, neither obligation can at- far as or his a note of such statutes, of Court Rules sim- Delaware torney may obtain wage re- respecting attachments signing at- the warrant ple any the debtor together quire kind of notice it, with torney presenting his note, upon actual attachment even copy original wages. then Prothonotary.11 A against automatically the debtor entered July 1, the Rules of Until kind notice without required to all notice Court judicial determi- sort absence en- debtors confessed try there has nation as whether them. Rule other defenses default or whether July 1, actual Rule effective But 77.12 exist. procedure: notice 77(d) abolished entry Immediately upon “(d) judg- Having judgment, the obtained judg- judgment, other than an order or attempt to collect ment creditor way Prothonotary ments levy, and sale execution ** (Our a notice shall serve property personal real or emphasis.) way of an attachment wages. the debtor’s Thus, a debtor the first notice to who judgment by confession enter- has had former, a debtor In the case him, lands, goods ed has who levy until the actual no notice receives upon subject and chattels which are the levy, can- after which sale his is not the time of expiration of 30 until the not be held levy is made. but when levy days days notice after the and 10 the confessed And the case of Del.C. of sale to the debtor. T. 10 prop- ment erty creditor who no leviable Sections wages, except notice at all is re- no wage attachment, a a In the case of presumably, practical quired and he as a upon fi the attachment fa based wages writ of matter, first learns that his judgment upon the is served confessed the been attached when called before garnishee, garnishee, employer, employer.13 and the his “(b) Judgment may explicitly requires 11. 10. be entered con- 10 2306 § Del.C. upon pro- Prothonotary attorney, judgment by fession warrant of to enter con- entering judgment application fession on vided that before such creditor. presented there be to the Prothono- shall tary bond, together Actually, prior original 77, 12. or note Rule even to its amendment, completely legible photocopy provided notice, after, with a of for upon prior to, same, entry there shall be noted rather than original or to ment. attached both instru- thereof, following copy ment and legend, signed by Feeney’s, both the 13. Nor which shall do we read Schwander v. person exercising Terry 198, (Del.Super. the warrant of attor- 3 29 369 A.2d depty: 1942) ney Prothonotary affecting or and tire his this statement. This Superior merely Judgment case judgment Enter herein holds after Delaware, for but before an for Court of the State attachment - - wages issued, County, (plaintiff) for there must be some - judicial portion (defendant) v. determination to what $- repre claim, any, (real debt) (penalty or of the creditor’s if $- con- life, but, any) at sents necessities of it seems dition if interest thereon with - holding , plus fact fee be a this from counsel 19— —% ignored, completely stay -, at case has of execution until been with - Magistrate (if applicable) courts. Docket least Page-. —, exercising attorney warrant

Person

Prothonotary Deputy’ or

1355 113; 780, 371, generally accepted 91 L.Ed.2d recourse14 S.Ct. 28 U.S. Goldberg debtor, supra; v. Kelly, v. to a confessed Sniadach available Finance, learning Family supra; Armstrong upon v. the existence of the Manzo, 545, 1187, judgment, or a motion to U.S. S.Ct. file vacate open (1965); Superior Central pursuant L.Ed.2d Mullane v. 60(b) ap- Co., 306, Hanover Trust .15 339 U.S. Court Rule As will hereafter (1950); remedy pear, Opp 94 L.Ed. 865 Cotton afforded Rule curing Administrator, Mills far v. falls constitutional short (1941); shortcomings practice.16 United the Delaware L.Ed. Co., States Illinois 291 U.S. Cent. R. summarize, then, judgments, To ob- (1934); 54 S.Ct. upon warrant tained Armour Works, Coe v. Fertilizer attorney may be, in Delaware and are (1915); 59 L.Ed. 1027 case,17 practically every entered with- Spoturno Woods, 8 W.W.Harr. hearing, out notice or the absence (Del.Sup.Ct.1937). 192 A. judicial form of determination leading In the case of Mullane v. Cen-' op- correctness, as to their and with no Co., supra, Supreme tral Hanover Tr. portunity part on Court said: existing debtor heard to be as to defens- intelligenDwaiv- “Many In raged es. the absence of an controversies have about governmental cryptic er or some valid or cred- and abstract words of the post- itors’ interest would warrant Due Process Clause but can be there ponement hearing, they of notice and no a doubt re- minimum * * * clearly procedures quire deprivation violate the most ru- dimentary requirements property by adjudication preceded un- g., See, der 14th amendment. opportunity e. notice Connecticut, Boddie appropriate March to the nature of the case.” Presumably, power rule This does whose limit independent attached court entertain move ac- only upon party judgment, have the attachment but tion lifted relieve posting security. proceeding, grant any first order 4(b) provided (B). by statute, Court Rule relief to set aside a fraud “(b) Mistake; Inadvertence; court, judgments by Excus- or to deal with con- Neglect; Newly able provided Discovered Evi- fession as law. Writs dence; Fraud, Etc. nobis, On motion and vobis, coram coram and audita just, may querela abolished, terms are the procedure court and the party representa- legal relieve a or obtaining his judgments for relief shall judgment, order, tive from final by a prescribed or be motion as in these rules proceeding following the independent also, reasons: or an action.” See (1) mistake, inadvertence, surprise, Layton, 411, or v. Miles 8 W.W.Harr. neglect; (2) newly (Del.Sup.Ct.1937); excusable discovered A. 567 Md. Credit diligence Corporation evidence Gordy, which due could Finance v. Del. not Super. 434, 405, have been in time (1948) discovered to move 61 A.2d 59(b); (3) lay a new trial under Rule which perior down the in the Su- (whether fraud point prior heretofore denominated Court on this to the misrepresentation extrinsic),, intrinsic or 60(b). advent of Rule party; or other adverse misconduct after, before, 16. It is available not the (4) void; judg- the is the entry judgment. released, satisfied, ment has been or dis- charged, prior judgment upon possible, course, or 17. It a is for the cred- complaint it is or itor file based lias reversed other- a the vacated, longer equitable upon or wise it no Court based the to- is note prospec- gether the with an should affidavit demand as application; (6) any Actually, tive to the other amount due. rea- is But, justifying operation obviously, son relief from the sometimes done. it would judgment. A motion be under this naive assume the holder finality subdivision does not affect such a note often more the would follow this suspend operation. complicated time-consuming process. of a its (1947); Harlan, Brothers Coffin case, 91 L.Ed. Justice the Boddie In 29, that, Bennett, 48 S.Ct. U.S. and Co. majority, v. writing concluded the Ownbey (1928); v. 422, overriding, L.Ed. 768 vital some in the absence 433, right Morgan, S.Ct. to a U.S. interest, the notice state prior L.Ed. 837 hearing afforded must be significant property any deprivation of complaints a number Because interest: alleged uncon- us are based before required hearing “That wage attachments, the Sniad- stitutional waiver, subject is not process is This was special interest. ach has case its root does not affect in form fixed wage under Wiscon- case a attachment giv- that an individual requirement wages attached sin where law hearing opportunity or a en an before garnishee by way aof the hands of significant prop- deprived he is the Clerk Court. summons issued extraordinary erty interest, except for thereto, ten the creditor Pursuant govern- some where valid situations complaint days a summons to serve jus- is at stake mental interest attachment is the debtor. hearing until postponing tifies automatically wage earn- if the dissolved short, In ‘within after event. successfully defends er thereafter practicability,’ Mullane limits of Obviously, such a main suit on the debt. Co., supra, [339 Tr. Central Hanover arbitrary substantially procedure less is at [70 U.S.] is in Delaware where than 865], must afford a State 94 L.Ed. actually notice or without entered meaningful oppor- all individuals hearing subject to the debt- tunity to be heard if fulfill Superior Court or’s to relief under promise of the Due Process Clause.” 60(b) Brief- Rule elsewhere discussed. significant have no doubt that a We ly stated, held that due Sniadach interest is involved each hearing prior requires notice and plaintiffs’ cases wages named because deprivation of the use of one’s resulting from the lien garnishment prejudgment and that completely depriving ment, while special procedure no Wisconsin involved property, from the use of his debtor protecting a creditor’s circumstances seriously restrict his nevertheless would justifying postpone- interest state’s ability it or it for to sell use collateral.18 ment of until after notice Boddie, Sniadach, Goldberg Compare deprived his of the use of Nor, special supra. do we think that cir- property: exist of these cases cumstances taking property is of one’s “Where necessitating protection of a valid argu- so it needs no extended obvious governmental See, or creditor’s interest. notice ment to conclude absent g., e. and Restaurant Workers Cafeteria prior (cf. Armour and a Coe v. Union, Local A.F.L.-C.I.O. Mc- Works, Fertilizer Elroy, 1743, 6 pre- 1027), this Ewing Myting- (1961); L.Ed.2d 1230 judgment garnishment procedure vio- Casselberry, Inc., er & 339 U.S. 70 principles of due the fundamental lates (1950); Fahey 94 L.Ed. 1088 19 Mallonee, process.” only by 2303(b); the of ‘notice’ and ‘hear- kinds § Del.C. Del.C. establishing 2304; ing’ are which aimed § § Del.C. 4717 and Brand v. probable Ogden-Howard validity, Co., the the or at least W.W.Harr. underlying validity, (Del.Super.1920). claim A. of the alleged the before he can deprived concurring un- its in his Justice Harlan used language: use.” somewhat restricted broader * * “Apart special *, situations process I think that due is afforded important waiver, above cited issue of we do not authorities the think We regard here reached it as fully authoritative. the sustain conclusion 10 Del.C. Sec. that Swarb, up however, squarely faces 58(b) of funda- Rule are violative Court we to be the what conceive fundamental process. due mental here, purport- issue which is whether the language ed waiver contained the WAIVER typical judgment binding note is on signers when measured fa- of these cases decides But none There, recognizing miliar standards.23 here, namely, the question raised crucial principle that a constitutional validity judgment obtained con- of a subject such as notice be the waiv- attorney upon warrant of where fession er, Pennsylvania federal court had signing debtor in note carefully elaborate evidence from a con- purports to notice to waive the survey, testimony ducted well bear- hearing entry advance of ing practical aspects prob- on the of this ment.20 Philadelphia lem in and concluded in ef- dealing cases with The two having persons fect that an income under Corporation question are Atlas Credit annually capable $10,000 were not of un- Ezrine, 25 N.Y.2d 303 N.Y.S.2d v. 382, derstanding language and, thus, (1969), judges two 250 N.E.2d 474 legal effect of the clause in waiver Lennox, dissenting, and Swarb typical confession of note. F.Supp. (E.D.Pa.1970), a three- upon this, Based the Court formulated case, judge judge dissented which one persons a class of all with incomes less Atlas, reasons In not stated. $10,000 annually than concluded essentially was with Court concerned thereof, the members because of their give question whether York should New incapacity assumed to understand the Pennsylvania full faith and credit to language legal effect of the confes- Judgment entered accom- freely sion clauses in these notes had not attorney. by power panied In decid- voluntarily and process waived their basic due ing that full faith and credit should not rights op- to notice and the judgment, be extended such a portunity before majority concluded that judgments against them. No evidence “ * * * was violative type introduced the Swarb and, therefore, unenforceable under the case was offered in the case at bar. reading Our Federal Constitution.” of Nevertheless, although by way of a suggests however, opinion, that the action, class at the arrive same sub- might heavily result reached have been stantive result based a different recognized influenced evils in- rationale. system22 herent here under at- and, precise tack because it fails to discuss and The plain- basis rely decide what First, we conceive to be the all- tiffs for relief is unclear. language typical 20. See taste the time-honored method of quoted obtaining jurisdiction.” above. 303 N.Y.S.2d at pp. pp. 388 and 250 N.E.2d at 21. First National Bank deKalb v. Jack citing Paulson, Enforcing and 482 (4-4284, Sup.Ct.Ill.1970) Keisman stands Money Judgment State, of a Sister only for the factual determination Hopson, Cog Iowa L.Rev. particular defendant waived case. Judgments, novit 29 U.ChiX.Rev. However, implicit finding 131, respectively. conclusion that notice and subject to waiver. relinquish- 23. “Waiver is the intentional Cognovit Judgments right “are not in ac- ment or abandonment of a known principles privilege.” Zarbst, cordance with justice fundamental v. Johnson play” again, “Today 458, 464, 1019, 1023, and fair U.S. 58 S.Ct. feeling there is a near unanimous dis- L.Ed. 1461 philosophy no vol concern is not what

they that there can be Our contend rights untary process un should not em- should or of due Wisconsin waiver super-legis- in do not sit as a scheme because brace. We der Delaware * * * they body. ques- have no lative The sole a loan order to obtain taking sign con tion is there a the waiver clause whether has been choice but procedural Hen without the note. tained ningsen Motors, Inc., process required that the four- Bloomfield v. 358, teenth amendment.” 161 A.2d 69 N.J. (1960). [We persuaded Nor this argument.] prop still face here the settled We argument accept defendant’s can we can, an under osition that individual Lending 15, Act, in T. U.S.C. the Truth conditions,24 specified certain waive effect, away seq., in does Sec. 1601 et right such as notice constitutional hearing on waiver. with the need for a Lennox, and, hearing, supra Swarb v. requirements of that Act While proposition, defendants based this light on the be admissible to throw some sign here, plaintiffs maintain that the ing understanding degree of of the debtor rights notes, their have waived their executing judgment note, we see signer otherwise, that —or stated language suggesting nothing in its of such a is deemed to have document compliance suffi therewith furnishes it. understood information on which base cient waiver. argument But overlooks presumption well-settled Secondly, somewhat line with right. waiver of a constitutional Glasser Corp., decision, supra, plain- Atlas Credit States, United U.S. v. S.Ct. that, tiffs seem contend ner, some man- 457, 86 L.Ed. 680. Note also the words process of due inherent the clear lack Janis, Black in Brookhart Justice v. statute, in the Delaware Rule of Court 86 S.Ct. resulting, practice does, in num- as (1966): L.Ed.2d 314 erous instances of unfairness and even downright fraud, vitiates the waiver con- question of a waiver of a federal- “The tained in the confession of right ly guaranteed is, constitutional They point clauses. fact that some course, question controlled federal system 17 states have abolished the presump- law. There is a federal many that tempted others statute have at- tion waiver of constitu- remedy glaring the most evils rights, see, g., tional e. Glasser system by providing inherent in the States, 60, 70-71, United 315 U.S. [62 some limited form of notice and the 680], 464-465, S.Ct. 86 L.Ed. right prior initial for a it must waiver to be effective judgment. they And assert clearly there established was England, originated where this relinquishment ‘an intentional aban- (and it), adopted from whence Delaware privilege.’ donment of a known usage virtually been eliminated 458, 464, Zerbst, Johnson 304 U.S. by statute. 1019, 1023, 82 [58 1461].” But it is not for a court to declare void (Emphasis supplied.) practices merely state statutes or based Kennedy, See also Aetna Life Ins. Co. v. upon personal disapproval did, 809, 811, 81 301 U.S. suspect, Atlas, supra. the Court in As (1939): L.Ed. 1177 Supreme Court stated in Sniadach: question

“The jury is not whether the “But Wis- trial [civil] consin law is a indulge every wise law or fundamental, unwise law. Courts We are not here concerned with a case fact received the defendant Equipment such as National no due Rental Ltd. claim was reached or Szukhent, decided. 11 L.Ed.2d where notice was against fatally that, by presumption tack is defective in fail- waiv- reasonable ing hearing provide pre- for and to notice er.” ceding entry judgment,26 of is no there very this case demon And the facts of judicially determining of method whether rule, a a of such strate the soundness knowingly particular or not a intelligently signed debtor and glance at the clause contain mere waiver note typical note raises seri ed in a waiving thereby his 14th amendment average ous whether the debtor doubt rights.27 that, conceding So as even we meaningful any could have understand do, may that there a num- be substantial ing legal implications ef of the of the * * * bankers, persons ber of law- signature in fect of his thereto. For * * * yers, sophisticated businessmen stance, expressions see the “succes we sign who do full re- notes with a assigns”, sors and “release of all and legal acts, alization of the effect of their judgment”, all of manner errors in such it remains that the Delaware “maker en or makers and endorser or judicial separat- furnishes no means for dorsers”, presentment; “waive demand * ing * persons case of those have who dishonor”, and of notice “authorize * knowingly intelligently * and waived any clerk, attorney prothonotary or those have who not. judg with or to confess without against me”; ment for the above amount light foregoing, In the de- all “waive benefit accept argument cline that to defendants’ Conceding exemption laws.” that some signature the mere on a debtor language well-known, quoted has a judgment note, more, without overcomes we, nevertheless, dictionary meaning, strong presumption waiv- emphasize expressions that most of the rights.28 er of one’s constitutional employed legal art of words of profession; and, particularly, we think ACTION CLASS all-important the evidence shows * ** words, “authorize Clerk waiver, question And because process25 with or without to confess going mind, itas does to the in- state judgment”, unexplained, otherwise must telligence degree knowledge meaningless quite unsophisti be obligor note, executing each when such a signer cated of a note. is, view, impossible in our to formulate then, We conclude that the Dela a class on whose behalf action can statutory ware scheme here under at- maintained. Meaning, course, 25. granted containing until final debtors creditors and that a ment observed have elsewhere We presented notes, disposition here signers judgment of the issues of of

number Supreme the United sophisti- Court of lawyers, the and bankers such as Swarb, supra. There signed in are businessmen, may States well have cated underlying strong this lit- they interests fully state that were notes aware such orderly igation improvement rights. the waiving and process More- due their procedures, Court many and this state court over, re- discloses that the record that, banks) certainly after (for entitled to assume is sponsible instance creditors decision, to will move explain in this state courts attempt that to debtors to rights. recognized expressly protect signing they are constitutional such note waiving right hear- notice and a their to proceed a determina now to We against judgment ing is entered before plain individual tion as to whether may result, then, a sub- It them. have established tiffs intervenors existing judgments number of stantial sustaining their contention facts because the valid and enforceable ques signed they notes knowingly and in- creditors ignorance constitutional tion of their right telligently their have waived rights. this in The standard hearing in advance notice and governed previously quiry entry judgment. But because the indulge down; namely, laid every that Courts judicial practice provides no Delaware procedure presumption reasonable separating the case of right, of a constitutional whether waiver those who have waived from those who origin right civil or crim of such be plain- not, cannot conceive how nature, inal in for a waiver to A, C, to have tiffs signed judgment B and who claim effective, clearly it must be established ignorance notes that there was a deliberate under process rights purport to can their right standing relinquishment of the in represent other debtors hundreds of Zerbst, Johnson Aetna Life volved. whom, many of after full based Kennedy, supra. Co. v. Ins. notice, may have waived be found to Earlier, we examined detail some rights. language typical note analysis, up In the it is final noted our and ability reservations as plaintiffs and define the establish average signer under- upon the an action Class basis of which terms think stand its and conditions. We - Rule 23 F.R. can be maintained under plaintiffs or a number could some plaintiffs This the have com Civ.P. language understand some of em- though Thus, pletely failed even to do. many, all, ployed if not realized aijid many aspects class action of a they payments, that if defaulted in their here, may present ques because their But, could be seized sold. validity tion of clouds the waiver previously emphasized, the cru- every upon a note obtained lang rage is cial found in the to be words attorney attached in * * * with warrant any “authorize Clerk with or State, we conclusion that reach the judgment,” without to confess the unusual of this case fails character the basic fundamental no- requisites to meet the of Rule 23 F.R. tice and! before Civ.P. judgment. And our examination say, course, This not to that no evidence convinces us that no case did safeguards persons exist who have the defendants demonstrate that one signed judgment plain- signed plaintiffs guidelines is, accordingly, “poor” injunction final as under the made Opportunity, I parties. of Economic Office to these ac- permit maintain this them to would reached is de- The conclusion here per- on tion as a action behalf of class claratory judgment levy prohibiting the residing County, Del- Castle sons New on, and sale the defend- execution and aware, signing and documents other of, property herein 15 ants mortgages, containing confession of than signers of the notes drawn clauses, qualifies income whose question proceeding. in this into guidelines “poor” pub- them under the Accordingly, we decree:29 periodically by lished the Office Eco- 30 (1) That 10 un 2306 is Del.C. Sec. Santiago Opportunity. nomic v. Mc constitutional and void. Elroy, (E.D.Pa. F.Supp. 291 319 (2) defendant, Spence, That Sheriff 1970); (E.D.Pa. Sellers No. v. Contino County, preliminarily New Castle 70-1946, Opinion 4/22/71). Re The permanently enjoined selling any Poverty Guidelines, vised OEO Income (either of, personal) or real (December 1, OEO Instruction 6004-lb paying proceeds over of the at- 1970), poor families are: wages of, any tachment of the of the plaintiffs intervening debtor Family Family Family Bise Farm Nonfarm plaintiffs herein who have found been $1,900 $1,600 1 not to have waived their due 2,000 2,500 2 rights executing when 2,500 3,100 3 3,200 3,800 giving judgments of America

UNITED STATES Wayne

Gary MATHEWS. No.

Crim. 70-411-G. Court,

United States District Massachusetts.

D.

June based notes a attorney the 14th judgment. amendment the federal warrant of to confess of, attempted constitution to, to notice and the Numerous states meet a problem. Clearing before a citizen “is de- Re- House prived any significant property (Vol. 3, July 1970, inter- view No. 144- PPS Connecticut, supra. A.). est.” Appendix Boddie v. Nor is us to it for say amount what of evidence it will take 26. At which cred- presumption to overcome interpose may itor and have determined judicial waiver. This matter is a defense waiver. determination in each case. We can say 27. This is not a fail- point that, assuming arguendo out ing appear proper and defend after might necessary less to find evidence notice not be held to have waived civil, criminal, waiver rather than by his default. See Windsor v. Mc- right, nevertheless, field, even the civil Veigh, 23 L.Ed. 914 courts federal have insisted that such degree evidence be kind clearly beyond establish doubt is, course, It this Court knowingly intelligent- the waiver was presume suggest here method ly Life made. Cf. Ins. Co. v. Aetna legislature courts, which the Delaware Kennedy, supra. perhaps both, could cure the vice in- present system herent

Notes

notes are not of these or intervenors knowledge specific tiffs in this action. The state courts a note with the Delaware, although thereafter, bound time without notice or declaratory judgment aspect heard, of this de- to be could cree, appropriate well take action him in an be entered amount quo subject to maintain the status between stated holder be due plain- petition Since filed a tion and Actions. Class if debtor to review 60(b) Barbour, and Townsend tiffs DuBois with Rule relief accordance qualify them as have incomes which Court. Rules published

notes rise to the form- 3,700 4,400 ing wage a basis for the levies at- and/or 4,200 5,000 tachments in the at case bar. 4,700 5,600 defendant, Spence, That return 7 members, For families with add more than herein, to each plaintiffs of the named member in a non- each additional $600 wages attached, whose have been and who farm for each additional family and $500 family. member in a farm have been found have waived rights process, their to due the amount finding supports The evidence wages so attached. fairly parties the abovementioned “will foregoing shall constitute adequately protect interests findings Court’s of fact and conclusions requisites the class” and that the other purposes 52(a), of law for of Rule Fed- (b) 23(a) are satis of F.R.Civ.P. eral Rules of Civil Procedure. Also, supports the con fied. the record under F. duct suit such class Submit order in accordance herewith. 23(c) (4). DUSEN, Judge R.Civ.P. (concur- VAN Circuit ring part dissenting part): Santiago, For reasons stated opinion I concur in except supra, the above F.Supp. court has portions relating for those rights jurisdiction to Jurisdic- of this civil action 29. The adequately protects effect of this decree does not ex- interests of these accompanying mortgages tend plaintiffs. to bond category because relief in this has not In view of the order March expressly disclaimed, but none Supreme Court United plaintiffs intervening plaintiffs (No. 538, States Lennox Swarb v. category. herein this “probable stating 1970), October Term unnecessary jurisdiction 30. We feel noted,” to declare un- U.S. 58(b) constitutional Rule of the Rules of 28 L.Ed.2d subject Court of Delaware for the ment review after final disposition reason that the conclusion here reached as case Swarb Su- unconstitutionality preme of Section 2306 Court of the United States. under brought class of such a on behalf 1343(3). would court This 28 U.S.C. § the claims pendent jurisdiction of intervening plaintiffs of the named Barbour, DuBois plaintiffs other than Oursler, See Hurn Townsend.

Case Details

Case Name: Osmond v. Spence

Court Name: District Court, D. Delaware

Date Published: May 13, 1971

Citation: 327 F. Supp. 1349

Docket Number: Civ. A. 3940

Court Abbreviation: D. Del.