No. 13511 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

WILLIAM E. WILLIAMS, 

Plaintiff 

-vsGEORGE MATOVICH et al., 

Defendants. 

Appeal from: U.S. District Court 

Hon. James Battin, Judge presiding. 

Counsel of Record: 

For Plaintiff: 

Steven L. Bunch argued, Helena, Montana 

For Defendants: 

Grant and Heard,, Columbus, Montana 

Richard W. Heara argued, Columbus, Montana 

Blenkner and Laws, Columbus, Montana 

For Amicus Curiae: 

Hon. Michael Greely, Attorney General, Helena, 

Montana 

Submitted: February 23, 1977 

Decided:m/j 3 1(17] 

4- - 

Clerk 
Mr. Chief Justice Paul G. Hatfield delivered the Opinion of 

the Court. 

This matter has been presented by certification from 

the United States District Court, District of Montana, Billings 

Division, seeking a declaratory judgment pursuant to Rule 1, 

M.R.Civ.P. 

The stipulated facts, made part of this certification 

are : 

During January 1976, plaintiff Williams purchased 

groceries on credit from defendant Matovich, pursuant to a verbal 

agreement. On January 26, 1976, Williams' employment at Stillwater Packing was terminated. 

Matovich then initiated suit in state court against 

Williams for the alleged grocery debt in the sum of $157.34. 

Pursuant to section 93-4301, R.C.M. 1947, Matovich applied for 

a writ of attachment at the time the summons issued. The writ 

of attachment was issued by the clerk of court, Stillwater County, 

which was presented by the sheriff, Stillwater County, to 

Stillwater Packing. The sheriff was then given a check for the 

entire amount alleged due and owing in the complaint, leaving 

Williams with a paycheck of $9.82. 

The sheriff has returned to Williams that portion of the 

paycheck exempted from garnishment by 15 U.S.C. 1671, et seq. 

The nonexempt portion has been retained, pending the outcome of 

a counter suit filed by Williams in federal district court, 

alleging the writ of attachment was a denial of due process. 

The issue certified is whether the Montana writ of attachment statutes, sections 93-4301, et seq.,R.C.M. 1947, as applied, 

violate the notice and opportunity to be heard requirements of 

due process as guaranteed by the Fourteenth Amendment to the 

United States Constitution? 

The four leading cases in this area are Sniadach v. 
1820, 

Family Finance Corp., 395 U.S. 337, 89 S.Ct./, 23 L Ed 2d 349; 

Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L Ed 2d 556; 

Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 

L Ed 2d 406, 412, 417; and North Georgia Finishing, Inc., v. 

DiChem, Inc., 419 U.S. 601, 94 S.Ct. 2601, 41 L Ed 2d 210. 

Sniadach involved the garnishment of wages under a 

Wisconsin statute, whereby the clerk of court issued a summons 

at the request of the creditor's attorney, and the latter, by 

serving the summons on the garnishee, froze the debtor's wages. 

The creditor was allowed 10 days in which to serve the summons 

and complaint on the debtor after service on the garnisher, 

although in this case the debtor was served the same day as was 

his employer. The wages would be unfrozen if the wage earner 

eventually won on the merits of the debt action. The Supreme 

Court held that this process violated the fundamental principles 

of due process as required by the Fourteenth Amendment because 

it did not provide notice and an opportunity for a hearing prior 

to the garnishment. Furthermore, the court stressed that wages 

are a specialized type of property, which when taken can cause 

severe hardship to the wage earner. 

Fuentes dealt with a prejudgment attachment of personal 

property under Florida and Pennsylvania statutes. Both statutes 

involved anexparte application made to the clerk, claiming an 

interest in the property, and the posting of a bond. Thereafter, 

the clerk issued a writ of replevin. Both statutes allowed the 

defendant to post a bond to regain possession. Otherwise, the 

property would be returned only if the defendant won on the merits 

of the litigation. Florida did require the creditor to file a 

complaint initiating a later court action, however Pennsylvania 

allowed the seizure of property under no more than a security 

bond and initiating no court action. Therefore, in the latter 
situation, the defendant had to initiate the litigation if he 

were to ever be afforded a post-seizure hearing. The Supreme 

Court, stating that notice and opportunity to be heard must be 

given at a meaningful time and in a meaningful manner, struck 

down both statutes, since neither provided for notice or an 

opportunity to be heard at any kind of prior hearing. The 

court also rejected the argument that only necessities, such 

as the wages in Sniadach were afforded such protection, stating 

that the Fourteenth Amendment applied to "property" generally. 

In Mitchell the court upheld a Louisiana statute allowing the prejudgment sequestration of personal property subject 

to a vendor's lien. Emphasis was placed upon the fact that 

both the creditor and the debtor had an interest in the property 

subject to sequestration, as evidenced by the court's statement: 

"With this duality in mind, we are convinced that 

the Louisiana sequestration procedure is not invalid, either on its face or as applied. * * *" 

(Emphasis supplied. ) 

Both Sniadach and Fuentes were discussed and disting~ished~with 

the court finding the following to be the saving characteristics 

of the Louisiana statute: 

(1) The writ did not issue on a conclusory allegation 

of ownership or possessory rights. The petitioner was required to 

set forth specific facts, on a verified petition or affidavit, 

showing the interest claimed and that it was within the power of 

the defendant to conceal, dispose of, or remove the property 

during the pendency of the action. 

(2) The showing was made before a judge, and it was the 

judge who issued the writ. 

(3) A bond was required of the petitioner. 

(4) The debtor was entitled to seek immediate dissolution of the writ, which placed the burden of proving the grounds 

of the writ upon the creditor. 
(5) The debtor, with or without seeking dissolution of 

the writ, was able to regain possession of the property by 

filing his own bond. 

North Georgia Finishing involved the garnishment of a 

bank account of a corporation. The statutory procedure required 

an affidavit by plaintiff or his attorney to be presented to the 

clerk of court or any officer authorized to issue attachment, 

stating the amount due and that he had reason to apprehend the 

loss of the same unless garnishment issued. A bond of double 

the amount was also required of plaintiff. Defendant could 

dissolve garnishment by posting a bond of his own. The court 

stated that the statute was vulnerable for the same reasons as 

Fuentes, that the bank account was impounded and absent a bond 

by defendant, put totally beyond use pending litigation on the 

debt, all by writ of garnishment by a court clerk without notice 

and opportunity for an early hearing, and without participation 

by a judicial officer. Furthermore, the court stated that the 

statute was not saved by Mitchell since the safeguards present 

in Mitchell were lacking in the Georgia statute. 

As applied to the facts of this case, we find that the 

Montana writ of attachment statutes, sections 93-4301 et seq., 

R.C.M. 1947, violate the notice and opportunity to be heard requirements of due process as set forth in the Fourteenth Amendment to the United States Constitution. We so find for two 

reasons. 

First, Sniadach is the controlling authority for the 

factual situation at hand, which is very similar if not identical, to Sniadach. Here, wages have been attached pursuant to a 

writ issued by a clerk of court, at the request of a creditor, 

without notice or an opportunity for a hearing prior to the 

attachment. We are cognizant of the emphasis placed upon the 
specialized type of property involved, wages. The court citing 

Sniadach reaffirmed this in Mitchell: 

" * * * 'a specialized type of property presenting distinct problems in our economic system' * * * 'prejudgment garnishment of the Wisconsin 

type may as a practical matter drive a wage-earning 

family to the wall1* * *." 

Furthermore, the suing creditor here, as in -- Sniadach, claimed 

no prior interest in the wages seized. There exists no duality 

of interest, which was present in Fuentes and Mitchell. 

Second, even if Mitchell governed as contended by Matovich, 

the Montana statute, as applied, failed. North Georgia Finishing 

also lacked the duality of interest, however the court did mention that none of the saving characteristics of Mitchell were 

present. Such is the case here. Though we find Sniadach controlling, the saving characteristics of Mitchell are absent in 

the Montana prejudgment attachment procedure. 

Matovich contends that Montana provides three procedures 

whereby the defendant can apply to the court for relief either 

prior or subsequent to the levy, and also requires a bond of the 

plaintiff. Pursuant to sections 93-4327 and 4328, R.C.M. 1947, 

defendant can move to discharge the attachment upon the condition 

that he file a bond of his own. Second, pursuant to sections 

93-4329 and 4330, R.C.M. 1947, defendant, either before or after 

the release of attached property or before the actual attachment, 

can move the court to discharge the attachment on the grounds 

that it was improperly or irregularly issued. If from the application it satisfactorily appears the writ was so issued, it must 

be discharged. Finally, sections 93-4332 and 93-4333, R.C.M. 

1947, allow the debtor to seek discharge of the writ any time 

before the actual application of the attached property to the 

payment of the judgment. 

The only Montana safeguards equal to any of those in 

Mitchell are that the plaintiff must file a bond to obtain the 
writ and defendant may file a bond to release his property. 

The Montana procedures for defendant to question the attachment do not equal those of Mitchell. In Mitchell the defendant could merely file his motion to dismiss, which placed the 

burden on plaintiff to prove the facts substantiating the writ. 

However, sections 93-4331 and 93-4333, R.C.M. 1947, place the 

burden upon defendant to prove that the writ was improperly or 

irregularly issued. Additionally, the opportunity for a preseizure hearing under section 93-4329 ie illusory. More likely 

than not, as in this case, the defendant is unaware that the 

writ has issued until the property is seized. 

Furthermore, the writ issued upon an affidavit presenting 

a conclusory allegation that a debt was owed to plaintiff. Section 93-4302, R.C.M. 1947, requires no showing by way of specific 

facts, as did the statute considered in Mitchell. The application under section 93-4302 was made to the clerk of court who 

issued the writ. This also falls short of Mitchell wherein this 

determination was made by the judge. 

Therefore, we find that, as applied, sections 93-4301 et 

seq., R.C.M. 1947, violate the fundamental principles of due 

process guaranteed by the Fourteenth Amendment to the United 

States Constitution. 

Chief Justice A