PER CURIAM:
The plaintiff in this action petitions the court to hold unconstitutional the Georgia garnishment in attachment procedure as violative of his due process, equal protection, and First Amendment rights. Jurisdiction is conferred pursuant to 42 U.S.C. § 1983, 28 U.S.C. §§ 1343(3), 2201 and 2202. A three-judge court was constituted in accordance with 28 U.S.C. §§ 2281 and 2284, inasmuch as plaintiff sought to enjoin the enforcement of a state statute as against himself and the class he represents.
The pertinent facts here reflect that the plaintiff, in 1969, financed the purchase of an automobile through a loan from the defendant, Motor Contract Company of Georgia (hereinafter referred to as “Motor Contract”). Several months thereafter, when the plaintiff defaulted in his payments on the loan, Motor Contract repossessed the vehicle at the plaintiff’s place of employment. While there exists some dispute as to the order in which Motor Contract attempted to locate the plaintiff by mail,"
i.e.,
whether before or after the repossession, it is apparent that Motor Contract’s written attempts in this regard remained unanswered by the plaintiff. On August 11, 1970, the plaintiff’s employer notified him that his wages had been garnished through the Civil and Criminal Court of Clayton County, Georgia. After consulting with his present counsel, the plaintiff learned that no action was then pending in the Civil Court of Fulton County, plaintiff’s county of residence. As a consequence thereof, plaintiff brought this action for injunctive and declaratory relief from the allegedly unconstitutional application of the Georgia scheme for garnishment under authority of Georgia Code Ann. §§ 46-101, 8-501, et seq., 8-204, 8-205 and 46-402.
Prior to the filing of briefs by the defendants, counsel for Motor Contract discovered that the proceedings before the Civil and Criminal Court of Clayton County were null and void, because the affidavit required by statute, Ga.Code Ann. § 8-109, was improperly executed. See, Heard v. National Bank of Illinois, 114 Ga. 291, 40 S.E. 266 (1901); Jenkins v. Community Loan & Investment Corp. of Savannah, 120 Ga.App. 543, 171 S.E.2d 654 (1969); Kazakos v. Soteres, 120 Ga.App. 258, 170 S.E.2d 50 (1969). In recognition of this fact, all proceedings before the court in Clayton County were dismissed by Motor Contract. The outstanding temporary restraining order first issued by this court on September 11, 1970, and continued on September 22, 1970, was thereafter dissolved on November 23, 1970, the defendant, Joe B. Mundy, being required to pay over to the plaintiff any funds then on deposit with that court.
At the hearing on November 23, 1970, the court heard oral argument by counsel primarily on the question of mootness. While counsel for the plaintiff concede that his claim for injunctive relief was mooted by Motor Contract’s dismissal in the state court, we reserved judgment on whether the dismissal was sufficient to also moot plaintiff’s claim for declaratory relief and damages. We are of the opinion that there remains a sufficient controversy in this case worthy of federal court adjudication.
The defendants contend that the state court dismissal of the garnishment proceedings evidences the lack of justiciability persisting in the cause now pending. The argument is made that the court would be acting upon a hypothetical situation which might never recur, since Motor Contract may not, under the above Georgia statutes, refile a similar suit until the circumstances which justified the prior suit present themselves
anew. In other words, pursuant to Ga. Code Ann. § 8-101,
the plaintiff must fall within one of the six statutory exceptions before garnishment in attachment becomes an available remedy.
While we find some merit to these contentions of defendants, we feel the better line of cases support the conclusion that a,
* * * voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i. e., does not make the case moot, [citations omitted] * * * The case may nevertheless be moot if the defendant can demonstrate that “there is no reasonable expectation that the wrong will be repeated.”
United States v. W. T. Grant Co., 345 U.S. 629, 632-633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1952). The defendants, in the instant case, have not sustained their burden by demonstrating to the court that the contested situation may not recur upon the dismissal of this suit. Motor Contract is in no way constrained from commencing another, albeit invalid, garnishment proceeding in the state courts, and thereby freezing the plaintiff’s wages until the final determination thereof or the filing of a bond as permitted by the statute. This freedom to “return to the old ways” is what makes the present action retain its justiciability. Therefore, the defendants' argument in favor of dismissal for mootness is hereby denied.
An examination of the pertinent statutes reveals that Georgia recognizes the garnishment in attachment procedure as an exception to the general prohibition against prejudgment garnishment. Ga. Code Ann. § 46-101. The state argues that the six extraordinary circumstances justifying prejudgment garnishment, Ga.Code Ann. §§ 8-101, 8-501, distinguish this case from that before the Court in Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), in that the situations contemplated by the statute negate the feasibility of having a prior hearing on the merits. Specifically, as applied to the plaintiff, the contention is made that were he truly “concealing himself”, as required by Section 8-101(4), then service of process followed by a hearing would by definition be impossible. Since the debtor’s whereabouts would be unknown to the creditor, the statute envisions the only practical manner by which the underlying debt may effectively be satisfied.
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PER CURIAM:
The plaintiff in this action petitions the court to hold unconstitutional the Georgia garnishment in attachment procedure as violative of his due process, equal protection, and First Amendment rights. Jurisdiction is conferred pursuant to 42 U.S.C. § 1983, 28 U.S.C. §§ 1343(3), 2201 and 2202. A three-judge court was constituted in accordance with 28 U.S.C. §§ 2281 and 2284, inasmuch as plaintiff sought to enjoin the enforcement of a state statute as against himself and the class he represents.
The pertinent facts here reflect that the plaintiff, in 1969, financed the purchase of an automobile through a loan from the defendant, Motor Contract Company of Georgia (hereinafter referred to as “Motor Contract”). Several months thereafter, when the plaintiff defaulted in his payments on the loan, Motor Contract repossessed the vehicle at the plaintiff’s place of employment. While there exists some dispute as to the order in which Motor Contract attempted to locate the plaintiff by mail,"
i.e.,
whether before or after the repossession, it is apparent that Motor Contract’s written attempts in this regard remained unanswered by the plaintiff. On August 11, 1970, the plaintiff’s employer notified him that his wages had been garnished through the Civil and Criminal Court of Clayton County, Georgia. After consulting with his present counsel, the plaintiff learned that no action was then pending in the Civil Court of Fulton County, plaintiff’s county of residence. As a consequence thereof, plaintiff brought this action for injunctive and declaratory relief from the allegedly unconstitutional application of the Georgia scheme for garnishment under authority of Georgia Code Ann. §§ 46-101, 8-501, et seq., 8-204, 8-205 and 46-402.
Prior to the filing of briefs by the defendants, counsel for Motor Contract discovered that the proceedings before the Civil and Criminal Court of Clayton County were null and void, because the affidavit required by statute, Ga.Code Ann. § 8-109, was improperly executed. See, Heard v. National Bank of Illinois, 114 Ga. 291, 40 S.E. 266 (1901); Jenkins v. Community Loan & Investment Corp. of Savannah, 120 Ga.App. 543, 171 S.E.2d 654 (1969); Kazakos v. Soteres, 120 Ga.App. 258, 170 S.E.2d 50 (1969). In recognition of this fact, all proceedings before the court in Clayton County were dismissed by Motor Contract. The outstanding temporary restraining order first issued by this court on September 11, 1970, and continued on September 22, 1970, was thereafter dissolved on November 23, 1970, the defendant, Joe B. Mundy, being required to pay over to the plaintiff any funds then on deposit with that court.
At the hearing on November 23, 1970, the court heard oral argument by counsel primarily on the question of mootness. While counsel for the plaintiff concede that his claim for injunctive relief was mooted by Motor Contract’s dismissal in the state court, we reserved judgment on whether the dismissal was sufficient to also moot plaintiff’s claim for declaratory relief and damages. We are of the opinion that there remains a sufficient controversy in this case worthy of federal court adjudication.
The defendants contend that the state court dismissal of the garnishment proceedings evidences the lack of justiciability persisting in the cause now pending. The argument is made that the court would be acting upon a hypothetical situation which might never recur, since Motor Contract may not, under the above Georgia statutes, refile a similar suit until the circumstances which justified the prior suit present themselves
anew. In other words, pursuant to Ga. Code Ann. § 8-101,
the plaintiff must fall within one of the six statutory exceptions before garnishment in attachment becomes an available remedy.
While we find some merit to these contentions of defendants, we feel the better line of cases support the conclusion that a,
* * * voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i. e., does not make the case moot, [citations omitted] * * * The case may nevertheless be moot if the defendant can demonstrate that “there is no reasonable expectation that the wrong will be repeated.”
United States v. W. T. Grant Co., 345 U.S. 629, 632-633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1952). The defendants, in the instant case, have not sustained their burden by demonstrating to the court that the contested situation may not recur upon the dismissal of this suit. Motor Contract is in no way constrained from commencing another, albeit invalid, garnishment proceeding in the state courts, and thereby freezing the plaintiff’s wages until the final determination thereof or the filing of a bond as permitted by the statute. This freedom to “return to the old ways” is what makes the present action retain its justiciability. Therefore, the defendants' argument in favor of dismissal for mootness is hereby denied.
An examination of the pertinent statutes reveals that Georgia recognizes the garnishment in attachment procedure as an exception to the general prohibition against prejudgment garnishment. Ga. Code Ann. § 46-101. The state argues that the six extraordinary circumstances justifying prejudgment garnishment, Ga.Code Ann. §§ 8-101, 8-501, distinguish this case from that before the Court in Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), in that the situations contemplated by the statute negate the feasibility of having a prior hearing on the merits. Specifically, as applied to the plaintiff, the contention is made that were he truly “concealing himself”, as required by Section 8-101(4), then service of process followed by a hearing would by definition be impossible. Since the debtor’s whereabouts would be unknown to the creditor, the statute envisions the only practical manner by which the underlying debt may effectively be satisfied.
The state’s reasoning, however, further exemplifies the logical inconsistency inherent within the statutory allowance of garnishment of wages. A creditor seeking to garnish the wages of a defaulting debtor, must know, for the purposes of filing the required affidavit, Ga.Code Ann. §§ 8-109 and 46-102, and the service of summons thereon, Ga.Code Ann. § 8-501, the debtor’s place of employment, inasmuch as summons of garnishment is directed to the employer-garnishee. Therefore, in order to garnish wages prior to judgment, the creditor must simultaneously aver that the debtor has “concealed himself” (thereby making service unfeasible),
and
that the debtor is employed and receiving wages at a stated location. There then exists this dichotomy between theory and practice which permits a creditor to freeze a debtor’s wages through a patently invalid claim of concealment.
The Court in
Sniadach, supra,
recognized the peculiar nature of wages as a “specialized type of property presenting distinct problems in our economic system.”
Id.,
at 340, 89 S.Ct. at 1822. The wage earner whose everyday sustenance depends upon his weekly income is entitled to protection from having that avenue of livelihood unjustifiedly withdrawn. As is well known, those persons most likely to have their wages garnished are not the affluent in our society. Consequently, the available remedy of posting bond for double the amount claimed is as illusory as their ability to pay the comparatively nominal monthly installments. See, Ga.Code Ann. § 46-402.
These alleged exceptional circumstances justifying pre-judgment garnishment simply fail to pass the constitutional test when applied to that form of property classified as wages. By definition, the wage earner has not concealed himself, and, therefore, a subsequent interference with his right to those wages absent a prior opportunity to be heard is plainly violative of his due process rights,
cf.,
Grannis v. Ordean, 234 U.S. 385, 34 S.Ct. 779, 58 L.Ed. 1363 (1914); Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965).
We find no objection to Georgia’s statutory scheme of garnishment in attachment when asserted against property other than wages; rather, it is the unusual nature of wages which inevitably forces the impecunious debtor to pay possibly excessive loan charges in order to regain his lost income. Save in truly extraordinary situations, the trend has been to afford the impoverished a pretermination hearing on the merits when the result otherwise would be to place the now financially incapacitated person in a compromising position and without hope of judicial recourse,
cf.,
Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). If
Sniadach
is to have precedential value to this and other courts, then Georgia’s procedure of freezing an alleged debtor’s wages without the necessary rudiments of due process cannot stand.
Therefore, to the extent that the final proviso of Georgia Code Ann. § 46-101,
i. e.,
Provided, further, that nothing in this section shall be construed as abridging the right of garnishment in attachment before judgment is obtained,
authorizes garnishment of wages prior to judgment on the merits, it is hereby declared to be unconstitutional as against the plaintiff and the class he represents. See, Sniadach v. Family Finance Corp.,
supra.
This decision shall have no effect on the merits of the plaintiff’s civil rights complaint brought pursuant to 42 U.S.C. § 1983. The plaintiff contends that he has been denied his rights, privileges and immunities secured him by the Constitution and laws of the United States, but inasmuch as that complaint presents claims not properly cognizable by a three-judge court, final disposition thereof is referred to the district judge before whom this action was commenced.