WIlliams v. Shaffer Petition for Writ of Certiorari

    1st th e

(Hmtrt uf %  Blmfrii
October Term, 1966 

No. ------

W illie W illiams and Sam Martin,

Petitioners,

J oseph N. Shaffer.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF GEORGIA

J ack Greenberg 
J ames M. Nabrit, III 
Charles H. J ones, Jr.
Charles Stephen R alston 

10 Columbus Circle 
New York, New York 10019

H oward Moore, J r.
859% Hunter Street, NW. 
Atlanta, Georgia 30314

Attorneys for Petitioners



I N D E X
PAGE

Citations to Opinions Below ........ ................-...............

Jurisdiction .......................................................................

Questions Presented..........................................................

Constitutional and Statutory Provisions Involved.......

Statement ...........................................................................

How the Federal Questions Were Raised and Decided 
B elow ...............................................................................

R easons eor Granting the W rit :—

The Court Should Grant Certiorari To Consider 
Petitioners’ Contentions That Georgia Code 
§ 61-303, Which Barred Them From A Hearing 
Because Of Their Poverty, Is In Conflict With 
Principles Declared By This Court And Is Un­
constitutional Under The Equal Protection And 
Due Process Clauses Of The Fourteenth Amend­
ment ............................................................................
Certiorari Should Be Granted to Decide the Ques­
tions Presented Since the Court Below Erred in 
Its Determination That Petitioners’ Cases Have 
Become Moot ................ ...........................................
The Question of the Right of an Indigent Tenant 
to Remain in Possession and Defend Against Evic­
tion Without Posting Substantial Security Re­
quired By a State Statute Is of General Im­
portance - ...................................................................

Conclusion.................................................................................

A ppendix .....................................................................................

1

2

2

3

5

8

10

16

21

24

la



11

T able oe Cases

Albany v. White, 46 Misc. 2d 915, 261 Misc. Supp. 2d 
361 (1965) .....................................................................  18

Burns v. Ohio, 360 U.S. 252 ............................................. 12

Cochran v. Kansas, 316 U.S. 255 .................................  13

DeFlorio v. Tarvin, 193 Ga. 760, 20 S.E.2d 29 ........... 13
Dowd v. Cook, 340 U.S. 206 ............................................. 13

Edwards v. California, 314 U.S. 160 .............................  12

Flynn v. Merck,------Ga.----- - ,  49 S.E.2d 892 (1948) .... 13

Gideon v. Wainwright, 372 U.S. 335 .............................  12
Goshen Mfg. Co. v. Hubert A. Myers Mfg. Co., 242

U.S. 202 :..................................... ....................................  21
Griffin v. Illinois, 351 U.S. 12 ................................. 10,14,15

Harper v. Yirgina State Board of Elections, 383
U.S. 663 ....................... ..................................................12,14

Hovey v. Elliott, 167 U.S. 409 .....................................10,13

Jones v. Gammon, 123 Ga. 47, 50 S.E. 982 ..................  18

Lehmann v. West Seventy-Sixth St. Man. Corp., 67
N.Y.S.2d 91 (Sup. Ct. N.Y.C. 1946) .......................... 18

Liner v. Jafco, 375 U.S. 301 .............................................  16
Love v. Griffith, 266 U.S. 3 2 ............................................. 16

Marluted Realtjr Corp. v. Decker, 260 N.Y. Supp. 2d
988 ................ ......................................

Murdock v. Pennsylvania, 319 U.S. 105

PAGE

18
12



Ill

Napier v. Varner, 149 Ga. 586, 101 S.E.2d 2 9 ..............  13
National Union of Marine Cooks v. Arnold, 348 U.S. 37 13

Porter v. Lee, 328 U.S. 246 .........................................17,18

Skoals Power Co. v. Fortson, 138 Ga. 460, 75 S.E. 606 18 
Sistrunk v. State of Georgia, 18 Ga. App. 42, 88 S.E.

796 ................................................................................... 15
Smith v. Bennett, 365 U.S. 708 ................................. .......  12
Southern Pacific Terminal Co. v. Interstate Commerce 

Commission, 219 U.S. 491..........................................  20

PAGE

Texas & N. O. R. Co. v. Northside Belt R. Co., 276
U.S. 475 ........    17

United States v. Trans-Missouri Freight Ass’n, 166 
U.S. 290 ................................................................18,19,20

Walling v. Helmerich & Payne, Inc., 323 U.S. 37 ....... 20
Ward v. Love County, 253 U.S. 1 7 .................................  16
Willie Williams and Sam Martin v. T. Ralph Grimes 

and Joseph N. Shaffer, Civil Action No. 10,025 (Slip
op. 1166, M.D. Ga.) ......................................................9,17

Windsor v. McVeigh, 93 U.S. 274 .............................11,12
Worthy v. Tate, 44 Ga. 152 ............................................  13

F edebal Statutes and R ules

U. S. Constitution, Amendment XIV, Sec. 1 ...........3, 8, 9
28 U.S.C. §1257(3) ........................................................  2
28 U.S.C. § 1446 ..............................................................  15

29 U.S.C. §407 ................................................................  15
31 U.S.C. § 518 ................................................................  15

Federal Rules of Civil Procedure 65 .......................... 15



IV

Georgia Statutes page

Georgia Code Ann., Title 24, § 3413 ............................  24
Georgia Code Ann., Title 26, §§ 4001-4002 ................... 15

Georgia Code Ann., Title 37, § 1403 ............................  15

Georgia Code Ann., Title 39, §§ 301-302 ....................... 15

Georgia Code Ann., Title 61, § 301  .......................... 3, 5

Georgia Code Ann., Title 61, § 302 ................. ............  3, 5
Georgia Code Ann., Title 61, § 303 .........4, 5, 6, 8, 9,15, 21
Georgia Code Ann., Title 61, § 304 ........................4, 5, 6, 7

Georgia Code Ann., Title 61, § 305 .............................  4, 6

Georgia Code Ann., Title 88, § 702 ..............................  15
Georgia Code Ann., Title 88, § 801 .............   15

Other State Statutes

Arkansas Statutes Annotated (1947), Title 34, § 1510 .. 23
California Code of Civil Procedure, § 1166a ..............  23

Burns Indiana Statutes Annotated (1933), §§3-1304 
through 3-1306 ........................................................    23

Mississippi Code Annotated (1942), Title 7, §957 ....... 23
Texas Buies of Civil Procedure (1955), Buie 740 ....... 23

Virginia Code Annotated (1950), Title 55, § 242 ........... 23
Bevised Code of Washington (1961), §59.12.100 .......23,24

West Virginia Code (1961), § 3672 .................................  24



V

Other A uthorities page

Diamond, Federal Jurisdiction To Decide Moot Cases,
94 U.Pa.L.Rev. 125 (1946) .........................................  18

Millspaugh, Problems and Opportunities of Relocation,
26 Law and Contemporary Problems 6 (1961) ........... 22

Note, Cases Moot On Appeal: A Limit On The Judicial 
Power, 103 U.Pa.L.Rev. 772 (1955) .......................... 18

Note, The Enforcement of Municipal Housing Codes,
78 Harvard Law Review 801 (1965) ..........................  23

Schier, Carl, Protecting the Interests of the Indigent 
Tenant: Two Approaches, 54 California Law Re­
view 670 (1966) ............................................................ 22

Schorr, Alvin L., Slums and Social Insecurity (U.S. 
Government Printing Office, 1963) ..........................22, 23

Sehoshinsld, Robert S., Remedies of the Indigent 
Tenant: Proposal for Change, 54 Georgetown Law 
Journal 519 (1966) ........................................................  23

"Wald, Patricia M., Law and Poverty: 1965 , (Wash­
ington, D. C.: 1965) .................................................... 23



In the

Supreme (Hmtrt at tty Ittilrft States
October Term, 1966 

No. ------

W illie W illiams and Sam M artin ,

— ■v .—

Petitioners,

J oseph N. Shappee.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF GEORGIA

Petitioners pray that a writ of certiorari issue to review 
the judgments of the Supreme Court of Georgia entered 
in the above entitled cases June 23, 1966, infra, p. 7a, re­
hearing denied July 7, 1966, infra, p. 8a. A single petition 
is filed in the two cases pursuant to this Court’s Rule 23(5), 
since the cases were consolidated for decision by the court 
below.

Citations to Opinions Below

The opinion of the Supreme Court of Georgia is reported 
at 149 S.E. 2d 668 (1966), and is printed in the Appendix 
hereto, infra, pp. 3a-6a. The Superior Court of Pulton 
County, Georgia, did not deliver an opinion in the cases. 
Its orders are printed in the Appendix hereto, infra, pp. 
la-2a.



2

Jurisdiction

The judgments of the Supreme Court of Georgia were 
entered June 23, 1966, infra, p. 7a. Motions for rehearing 
were denied by the Supreme Court of Georgia July 7, 1966, 
infra, p. 8a. The time for filing this petition for writ of 
certiorari was extended to and including December 3, 1966 
by an order signed by Mr. Justice Black on September 28, 
1966.

The jurisdiction of this Court is invoked under 28 U.S.C. 
§ 1257(3), petitioners having asserted below and asserting 
here deprivation of rights secured by the Constitution of 
the United States.

Questions Presented

Petitioners, both indigent Negroes, formerly residing in 
low rental apartments in Atlanta, Georgia, were summarily 
evicted pursuant to procedures established by Georgia 
Code Title 61, §§301-305. Because the statute requires the 
posting of a bond with substantial security as a pre-condi­
tion to making any defense, they were denied a hearing 
on defenses they attempted to assert:

1. Under these circumstances were petitioners denied 
rights guaranteed by the equal protection and due process 
clauses of the Fourteenth Amendment to the United States 
Constitution1?

2. Are their cases moot because of the evictions, in 
view of the facts that: (a) the evictions were able to be 
carried out solely because of the unconstitutional proce­
dure; (b) their rights will be affected by any decision 
upon the constitutionality of the statutes; and (c) there 
is a substantial public interest in the continued unconstitu­
tional operation of the statutes!



3

Constitutional and Statutory Provisions Involved

This case involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States.

This case also involves the summary eviction procedure 
provided by the statutes of the State of Georgia:

Georgia Code Annotated, Vol. 19 
Title 61

61-301. Demand for possession; proceedings on ten­
ant’s refusal to deliver.—In all cases where a tenant 
shall hold possession of lands or tenements over and 
beyond the term for which the same were rented or 
leased to him, or shall fail to pay the rent when the 
same shall become due, and in all cases where lands 
or tenements shall be held and occupied by any tenant 
at will or sufferance, whether under contract of rent 
or not, and the owner of the lands or tenements shall 
desire possession of the same, such owner may, by 
himself, his agent, attorney in fact or attorney at law, 
demand the possession of the property so rented, 
leased, held, or occupied; and if the tenant shall re­
fuse or omit to deliver possession when so demanded, 
the owner, his agent or attorney at law or attorney 
in fact may go before the judge of the superior court 
or any justice of the peace and make oath to the facts.
(p. 106)

61-302. Warrant for tenant’s removal.—When the 
affidavit provided for in the preceding section shall be 
made, the officer before whom it was made shall grant 
and issue a warrant or process directed to the sheriff, 
or his deputy, or any lawful constable of the county 
where the land lies, commanding arid requiring him 
to deliver to the owner or his representative full and



4

quiet possession of the lands or tenements mentioned 
in the affidavit, removing the tenant, with his property 
found thereon, away from the premises, (p. 124)

61-303. Arrest of proceedings by tenant; counter­
affidavit and bond.—The tenant may arrest the pro­
ceedings and prevent the removal of himself and his 
goods from the land by declaring on oath that his 
lease or term of rent has not expired, and that he is 
not holding possession of the premises over and be­
yond his term, or that the rent claimed is not due, or 
that he does not hold the premises, either by lease, or 
rent, or at will, or by sufferance, or otherwise, from 
the person who made the affidavit on which the war­
rant issued, or from anyone under whom he claims 
the premises, or from anyone claiming the premises 
under him : Provided, such tenant shall at the same 
time tender a bond with good security, payable to the 
landlord, for the payment of such sum, with costs, as 
may be recovered against him on the trial of the case, 
(pp. 124-125)

61-304. Issue tried in superior court.—If the counter­
affidavit and bond provided in the preceding section 
shall be made and delivered to the sheriff or deputy 
sheriff or constable, the tenant shall not be removed; 
hut the officer shall return the proceedings to the next 
superior court of the county where the land lies, and 
the fact in issue shall be there tried by a jury. (p. 129)

61-305. Double rent and writ of possession, when.—
If the issue specified in the preceding section shall be 
determined against the tenant, judgment shall go 
against him for double the rent reserved or stipulated 
to be paid, or if he shall be a tenant at will or suffer­
ance, for double what the rent of the premises is



5

shown to be worth, and such judgment in any case 
shall also provide for the payment of future double 
rent until the tenant surrenders possession of the 
lands or tenements to the landlord after an appeal or 
otherwise; and the movant or plaintiff shall have a 
writ of possession, and shall be by the sheriff, deputy, 
or constable placed in full possession of the premises, 
(p. 135)

Statement

Petitioner Willie Williams was renting several rooms 
from defendant Joseph Shaffer at 424 Markham Street in 
Atlanta, Georgia (R-W 6).1 Petitioner Sam Martin was 
renting a single room from the same landlord at 445 Miller 
Alley S.W. in Atlanta, Georgia (R-M 6).2

Acting under procedures established by Georgia Code 
Title 61, §§ 301-302, defendant landlord on or about Febru­
ary 22, 1966 procured dispossessory warrants from a judge 
of the Fulton County Superior Court directed to the county 
sheriff to dispossess each petitioner (R-W 6,14; R-M 6, 14).

Following notification of the existence of the disposses­
sory warrant, each petitioner attempted to arrest the evic­
tion proceedings and prevent his removal from the prem­
ises under procedure established by Georgia Code Title 61, 
§§ 303-304. Each sought to file an appropriate counter-affi­
davit in the Superior Court of Fulton County raising de­
fenses together with an affidavit that he was unable to post

1 There were originally two cases, but they were consolidated for deci­
sion by the Supreme Court of Georgia since the relevant facts and issues 
are identical. The citation “R -W ” is to the record in Willie Williams v. 
Joseph N. Shaffer, and the citation “R-M”  is to the record in Sam Martin 
v. Joseph N. Shaffer.

2 See footnote 1.



6

security as required by that statute in such cases due to his 
poverty (R-W 5-24; R-M 5-23).

The nature of the defenses which each petitioner sought 
to raise to the eviction proceeding included (1) that the 
rent claimed was not due (R-W 9; R-M 9); (2) that he was 
willing and able to pay all further rents as they became 
due (R-W 9; R-M 8-9); (3) pursuant to an agreement be­
tween himself and the defendant landlord, petitioner had 
made certain repairs on the premises for which materials 
and labor the defendant landlord was to credit against 
rents due or to become due (R-W 7-8; R-M 7-8); (4) de­
fendant landlord had failed to give the petitioner the 
notice required by law of his intention to terminate the 
tenancy (R-W 7; R-M 7); (5) two weeks previously de­
fendant landlord procured a dispossessory warrant for 
the same premises, and upon subsequent appearance in the 
Fulton County Civil Court, defendant landlord volun­
tarily announced that he had received his rent and that he 
accepted petitioner as a tenant in the premises (R-W 6-7; 
R-M 6-7); (6) that the defendant landlord was abusing the 
process of the Court to avoid making the necessary repairs 
required of him by law on the premises in issue, and to 
avoid compensating petitioner for making repairs (R-W 8; 
R-M 8).

The security required by Title 61, § 303 is substantial. 
Georgia Code Title 61, § 305 provides that if the issue is 
determined against the tenant, judgment shall go against 
him for double the rent due for the period during which 
he was in possession after the initial attempt at eviction, 
and Title 61, § 304 provides that the issue shall be tried 
in Superior Court before a jury—a procedure which may 
require several months (R-W 17-18; R-M 18-19). The 
Marshal of the Civil Court of Fulton County, who is 
charged with the duty of accepting the bond and staying



7

the eviction proceedings by Title 61, § 304, stated that 
he would accept only surety on bonds furnished by a li­
censed corporate surety, or an individual surety who owns 
real property located in Fulton County sufficient in value 
to support the bond involved (R-W 18; R-M 17). The 
several insurance agencies contacted, which were known 
to post dispossessory bonds for tenants, advised that it 
would be necessary for each petitioner to put up a cash 
collateral for double the rent for about six months, as 
well as pay an unrecoverable bond premium (R-W 16; 
R-M 17).

The circumstances of petitioner Willie William’s poverty, 
which supported his affidavit of inability to post the secur­
ity, was that he was presently unemployed; when last em­
ployed as a handy man he earned $50 a week; the rent in 
issue was $17 a week; he had a wife and three children 
who lived with him at the premises in issue; he had to 
spend about $9 a week for wood and coal to heat the prem­
ises (R-W" 8-9). The circumstances of petitioner Sam 
Martin’s poverty, which supported his affidavit of inability 
to post the security, was that he earned $54 a week in 
construction work; the rent in issue was $6 a week; he 
had to spend about $3 a week for coal to heat the premises 
in issue; the premises were in such dilapidated condition 
that he had to make continuous expenditures to keep them 
habitable (R-M 15-16). Both petitioners were without 
friends or relatives able to post security in the form of 
real property located in Fulton County for the bond re­
quired (R-W 10; R-M 11).



8

How the Federal Questions Were Raised 
and Decided Below

In their petitions to the Superior Court of Fulton County 
attempting to arrest the eviction proceedings, each peti­
tioner sought vacation of the dispossessory warrants of 
February 22, 1966, and injunctions against the defendant- 
landlord and the sheriff of Fulton County restraining them 
from executing said dispossessory warrants, on the ground 
that Georgia Code Title 61, § 303 violates the equal pro­
tection and due process clauses of the Fourteenth Amend­
ment to the United States Constitution, in that said statute 
invidiously barred petitioners from obtaining hearings in 
the courts of the State of Georgia of any defenses which 
they might have to said evictions solely because of their 
poverty (R-W 9-12; R-M 9-12). Each petitioner sought 
to be allowed to pay into the registry of the Superior 
Court any rents due or to become due to the defendant- 
landlord during the pendency of the action, requested that 
the defendant-landlord be enjoined from evicting peti­
tioners until the disposition of the case, and sought such 
other and further relief as might appear just during the 
course of the proceedings (R-W 12; R-M 12).

After oral argument in the Superior Court of Fulton 
County, both the petition of Willie Williams and the peti­
tion of Sam Martin for injunctions were denied, and de­
fendant-landlord Joe Shaffer’s motions to dismiss were 
granted, in orders of March 2, 1966 (R-W 25; R-M 24).

Each petitioner appealed to the Supreme Court of 
Georgia from the above orders and judgments (R-W 1; 
R-M l ) .3 In the Enumeration of Errors, each petitioner

_ 3 Following the denial of the injunction in the state court, both peti­
tioners also filed a consolidated suit in the United States District Court



9

again asserted that Georgia Code Title 61, § 303, requiring 
the posting of a bond as a condition precedent to the 
making of a defense by a tenant in a dispossessory pro­
ceeding, constituted a violation of the Fourteenth Amend­
ment to the Constitution of the United States (R-W 28-29; 
R-M 27-28). The Attorney General of Georgia filed a brief 
in the Supreme Court on behalf of the State of Georgia, 
and the Atlanta Real Estate Board filed an amicus curiae 
brief.

The Supreme Court of Georgia, in a single consolidated 
decision of the two cases on June 23, 1966, dismissed the 
appeals on the ground that since the court below had re­
fused to stay the dispossessory proceedings pending ap­
peal, the sheriff of Fulton County had, in fact, evicted the 
petitioners from their respective premises on March 5, 
1966, thereby rendering the cases moot, since all that was 
sought to be enjoined had been done. The Court also re­
fused to consider the cases as seeking declaratory judg­
ments since there were no circumstances alleged which 
showed that an adjudication of petitioners’ rights was 
necessary in order to relieve them from the risk of taking

for the Northern District of Georgia, Atlanta Division ( Willie Williams 
and Sam Martin v. T. Ralph Grimes and Joseph N. Shaffer, Civil Action 
No. 10,025), asking for a restraining order against the Sheriff o f Fulton 
County and defendant landlord from evicting petitioners under the state 
proceedings, a permanent injunction against the enforcement of Title 61, 
§ 303, and a declaratory judgment rendering such section null and void. 
A  three-judge court was impaneled. The State of Georgia through the 
Attorney-General intervened as a matter of right, and the Atlanta Real 
Estate Board also intervened as amicus curiae. The district court denied 
relief in an opinion dated April 18, 1966, on the ground that a state 
proceeding was still in progress and that there was a possibility of 
obtaining relief therein.

Subsequent to the denial of relief by the Supreme Court of Georgia, 
petitioners filed a motion for reconsideration in the district court. This 
was denied in an order dated August 23, 1966 and the original opinion 
was re-adopted.



10

any future action incident to their rights, which action 
without direction would jeopardize their interests (R-W 
33-41; R-S 32-40) (R-W 33-41; R-M 32-40). The Supreme 
Court of Georgia did not make any explicit determination 
concerning petitioners’ Constitutional claims.

REASONS FOR GRANTING THE WRIT

The Court Should Grant Certiorari To Consider 
Petitioners’ Contentions That Georgia Code § 61-303, 
Which Barred Them From A Hearing Because Of 
Their Poverty, Is In Conflict With Principles Declared 
By This Court And Is Unconstitutional Under The 
Equal Protection And Due Process Clauses O f The 
Fourteenth Amendment.

The decision of the court below is in conflict with deci­
sions of this Court as exemplified by Ilovey v. Elliott, 167 
U.S. 409 and Griffin v. Illinois, 351 U.S. 12. Sections 303-304 
of Title 61 of the Georgia Code Annotated require that 
any defendant in a summary ejectment action post a bond 
with good security as a precondition to making any de­
fense. An indigent defendant may be divested summarily 
of valuable rights solely because of his poverty without 
regard to the merits. Petitioners submit that this require­
ment violates the due process and equal protection clauses 
of the Fourteenth Amendment when applied to an indigent 
tenant-defendant.

This Court has long made clear that a state government 
violates due process of law by subjecting defendants in civil 
or criminal proceedings to judicial processes which deny 
such fundamental rights as to notice and opportunity to 
appear and defend. Hovey v. Elliott, 167 U.S. 409, decided



11

in 1897, held that due process was denied by a trial court 
which struck a defendant’s answer and refused to permit 
him to try his case on the merits because he had disobeyed 
the court’s order to pay into its registry money which was 
the subject matter of the controversy. The Court reasoned 
that the denial of all right to defend would convert the 
court into an instrument of wrong and oppression.

In Windsor v. McVeigh, 93 U.S. 274, although notice was 
given in a proceeding to confiscate property under a Civil 
War statute, petitioner’s answer was stricken and judg­
ment was summarily rendered against him. Mr. Justice 
Field, in a decision reversing the lower court, described 
why the due process clause requires that a defendant be 
afforded an opportunity to appear and defend:

Wherever one is assailed in his person or his property, 
there he may defend, for the liability and the right are 
inseparable. This is a principle of natural justice, 
recognized as such by the common intelligence and 
conscience of all nations. A  sentence of a court pro­
nounced against a party without hearing him, or giving 
him an opportunity to be heard, is not a judicial deter­
mination of his rights, and is not entitled to respect 
in any other tribunal.

That there must be notice to a party of some kind, 
actual or constructive, to a valid judgment affecting 
his rights, is admitted. Until notice is given, the court 
has no jurisdiction in any case to proceed to judgment, 
whatever its authority may be, by the law of its organi­
zation, over the subject matter. But notice is only for 
the purpose of affording the party an opportunity 
of being heard upon the claim of the charges made; 
it is a summons to him to appear and speak, if he has 
anything to say why the judgment sought should not



12

be rendered. A denial to a party, of the benefit of a 
notice would be in effect to deny that he is entitled to 
notice at all, and the sham and deceptive proceeding 
had better be omitted altogether. It would be like 
saying to a party: appear, and you shall be heard; and, 
when he has appeared, saying: your appearance shall 
not be recognized, and you shall not be heard. 93 IT.S. 
at 277, 278.

Thus, just as the exercise of such basic rights as free 
speech,4 the right to travel from one state to another,5 the 
right to vote6 or the right to counsel7 cannot be conditioned 
on affluence, neither may the right to defend in a civil 
action before valuable property rights are taken away.

Similarly, this Court has held that to condition on one’s 
affluence the undertaking of certain proceedings violates the 
equal protection clause. The Court has struck down fee limi­
tations on the right of criminal defendants to take an appeal, 
Burns v. Ohio, 360 U.S. 252, or to file a petition for a writ 
of habeas corpus, Smith v. Bennett, 365 U.S. 708. To re­
quire an indigent to pay such fees was invalid, since 
“ [t]here is no rational basis for assuming that indigent’s 
motions for leave to appeal will be less meritorious than 
those of other defendants,” Burns v. Ohio, supra, at 257, 
258.8 Nor can the state, acting through penal institutions, 
impose rules which make arbitrary distinctions between

4 Murdoch v. Pennsylvania, 319 U.S. 105.

5 Edwards v. California, 314 U.S. 160.

6 Harper v. Virginia State Board of Elections, 383 U.S. 663.

7 Gideon v. Wainwright, 372 U.S. 335.

8 In contrast, the federal in forma pauperis statute, 28 U.S.C. § 1915, 
permits a federal court to deny leave to appeal in forma pauperis but 
only after a finding, reviewable on appeal, that the appeal is without 
merit and not in good faith.



13

those who can and who cannot appeal. See Cochran v. Kan­
sas, 316 U.S. 255; Dowd v. Cook, 340 U.S. 206.9

In determining both whether the Georgia statute vio­
lates due process and whether it denies equal protection of 
the laws, the determining factor is whether there is any 
rational or legitimate basis for imposing a fee requirement 
that distinguishes between tenant-defendants with and with­
out means to furnish bonds before having their defenses 
heard. Petitioners contend that there is no such justifica­
tion, but that on the contrary the state has created an 
irrational distinction between the affluent and the indigent 
tenant, raising, in effect, an irrebuttable presumption that 
the defenses of the indigent tenant are without merit.10 
However, since there is no rational basis for presuming 
that the defense of the indigent tenant is less meritorious 
than that of affluent tenant-defendants, the state has 
created an “ invidious discrimination” against the poor 
by making affluence a standard of measurement as to which

9 A  distinction has been drawn between a state fee requirement on 
taking an appeal, as applied to an indigent, and a requirement o f post­
ing a bond on appeal as security. National Union of Marine Cooks v. 
Arnold, 348 U.S. 37. But the Court in Arnold expressly distinguished 
between a bond requirement on appeal from such a requirement as a pre­
condition to making a defense at trial, on the ground that at the appellate 
stage the appellant has already had his day in court. Hovey v. Elliott, 
supra, is discussed at length both by the majority which distinguishes 
it, and in a dissent by Justices Black and Douglas who argue that 
Hovey should apply even to an appeal, once the state has undertaken 
to provide a system of appeals.

10 Not only will the indigent tenant be unable to file his affidavit of 
defense in the dispossessory warrant proceedings, but Georgia eases 
consistently deny tenant-plaintiffs injunctive relief against evictions, on 
the ground that, even though the tenant may be indigent and unable to
furnish bond, the legal remedy is adequate. Flynn v. Merck, ------  Ga.
------ , 49 S.E.2d 892 (1948); Napier v. Varner, 149 Ga. 586, 101 S.E.2d
29; DeFlorio v. Tarvin, 193 Ga. 760, 20 S.E.2d 29; cf. Worthy v. Tate, 
44 Ga. 152.



14

tenant defenses should or should not be heard. Cf. Harper 
v. Virginia State Board of Elections, supra.

In Griffin v. Illinois, 351 U.S. 12, where the Court struck 
down as such an invidious discrimination an Illinois ap­
pellate procedure requiring indigent criminal defendants 
to pay for transcripts of proceedings in order to gain 
review of non-constitutional errors, it was said:

Surely no one would contend that either a State or 
the Federal Government could constitutionally provide 
that defendants unable to pay court costs in advance 
should be denied the right to plead not guilty or to 
defend themselves in court. Such a law would make 
the constitutional promise of a fair trial a worthless 
thing. Notice, the right to he heard, and the right to 
counsel would under such circumstances be meaning­
less promises to the poor.

# # # # #
There is no meaningful distinction between a rule 

which would deny the poor the right to defend them­
selves in a trial court and one which effectively denies 
the poor an adequate appellate review accorded to 
all who have money enough to pay the costs in ad­
vance. 351 U.S. at 17-18 (emphasis added).

And just as the Court concluded in Griffin that “ [tjhere 
can be no equal justice where the kind of trial a man gets 
depends on the amount of money he has,” (351 U.S. at 19), 
obviously, here, equal justice will be denied if the question 
whether a man will get a trial at all is answered by the 
amount of money he has.

Indeed, it is difficult to conjecture what might be a valid 
reason for closing off the opportunity to defend one’s 
rights if the defendant was destitute. Unlike requirements



15

for the payment of fees by plaintiffs11 12 the bond require­
ment here, placed upon defendants, does not serve to limit 
the filing of frivolous claims.13

Thus, the conclusion is inescapable that just as the Court 
held in Griffin that the constitutional prohibitions against 
denials of equal protection of the law and due process of 
law bar the conditioning of access to the criminal process 
on affluence, so they similarly must bar the imposition of 
such a condition on an indigent in a civil action before he 
may present his defenses to his being divested of valuable 
property rights.

11 The giving of a bond by a plaintiff is a frequent limitation on the 
right to the use of courts or for extraordinary relief in the federal and 
state systems. See 31 U.S.C. § 518 (injunction to stay distress warrant); 
29 U.S.C. § 407 (injunction in labor disputes); 28 U.S.C. § 1446 (re­
moval of cases); F.R.C.P. 65 (temporary restraining order); Georgia 
Code § 39-301 and 302 (forthcoming bonds); Georgia Code 88-702 and 
8-801 (claim bond in attachment); Georgia Code § 37-1403 (ne exeat). 
However, no similar provisions have been found requiring defendants 
to furnish bonds before filing a defense after plaintiffs have selected the 
forum.

12 Georgia has an effective device for limiting frivolous defenses. The 
defense must be made by affidavit. Title 61, Georgia Code Ann. § 61-303.
Title 26, Ga. Code Ann., §§ 26-4001, 26-4002, would subject the per­
juring affiant to criminal penalties. See Sistrunk v. State o f Georgia, 
18 Ga. App. 42, 88 S.E. 796 (syllabus: conviction for perjury upon a 
false affidavit made in dispossessory proceedings, affirmed).



16

Certiorari Should Be Granted to Decide the Ques­
tions Presented Since the Court Below Erred in Its 
Determination That Petitioners’ Cases Have Become 
Moot.

The court below ruled that since petitioners had been 
evicted, “the suits to enjoin their removal from the rented 
premises (have) become moot.” (Appendix, p. 6a.) It also 
refused to grant petitioners’ prayers for declaratory 
judgment adopting language saying “ [wjhere, as here, 
the petition shows that the rights of the parties have al­
ready accrued and no facts or circumstances are alleged 
which show that an adjudication of the plaintiffs’ right is 
necessary in order to relieve [them] . . . from the risk of 
taking any future undirected action . . . the petition fails 
to state a cause of action for declaratory judgment.” (Ap­
pendix, p. 6a.)

Whether a case in which a federal constitutional claim 
has been asserted has become moot is a federal question 
to be decided by this Court in resolving its jurisdiction; 
hence, the lower court’s finding of mootness is not binding. 
Love v. Griffith, 266 U.S. 32; Liner v. Jafco, 375 U.S. 301, 
304, 305, Cf. Ward v. Love County, 253 U.S. 17, 22.

The decision below, if allowed to stand, would conclude 
a series of attempts by petitioners to obtain their con­
stitutional right to be heard before they are divested of 
valuable property rights. In the eviction proceeding they 
were met by the challenged bond requirement, which con­
stituted an absolute bar. They then filed a petition in equity 
to challenge the bond statute. However, after their petition 
was denied they were evicted by default because they 
could not present their defenses. The Supreme Court 
of Georgia held that this action was moot because of that 
eviction. In this way the wholly anomalous result was 
reached that the state could use an unconstitutional and



17

lienee void proceeding to prevent petitioners from chal­
lenging that very proceeding. Thus, if petitioners’ cases 
are now moot, it is difficult to imagine how the constitu­
tionality of the statute can be ever decided by this Court 
or any of the lower Georgia courts.12a Indeed, the statute 
would be virtually immune from constitutional challenge.13

Decisions of this Court have made clear that where 
acts sought to be enjoined have been performed by coercion 
(e.g. by forcible eviction), the case is not moot because 
the consequences of the conduct may be set aside by the 
subsequent issuance of an injunction. Porter v. Lee, 328 
U.S. 246; Texas & N. 0. R. Co. v. Northside Belt R. Co., 
276 U.S. 475, 479.

In Porter v. Lee, the Federal Price Administrator 
brought actions in a federal district court under the 
Emergency Price Control Act to restrain an eviction 
brought by respondent in state court for alleged non-pay­
ment of rent. The Administrator’s complaints were dis­
missed and pending appeal the tenant vacated his apart­
ment. The Circuit Court of Appeals held that the cases 
had become moot. This Court reversed the mootness ruling, 
reasoning that “ (t)he mere fact that the (tenant) . . .  in 
order to comply with the writ of possession vacated the 
apartment was not enough to end the controversy.” (328 
U.S. at 251.) Since the respondent there had completed 
the acts sought to be enjoined (the eviction) after having 
notice of the injunction suit the Court held that there 
was mandatory injunctive power to restore the status 
quo, citing, Texas $  N. 0. R. Co., supra.

12a fpjjg summary eviction statute provides that eviction will take place 
three days after a dispossessory warrant is obtained unless within that 
period the tenant files a counter affidavit and bond pursuant to the 
challenged statute. Tit. 61, 5 306, Ga. Code Ann. Sec, R-M 14.

13 The petitioners were also unsuccessful in an attempt to obtain a 
federal court injunction against the evictions and the operation o f the 
statute. Williams, et al. v. Grimes, C.A. No. 10,025 (Slip Op. 1166, M.D. 
Ga.), see fn. 3, supra.



18

Petitioners here brought both state and federal injunc­
tive suits to stay their evictions. Certainly, Porter would 
bar an assertion that their cases are now moot because 
they were unable to stay their evictions, because of Georgia 
law, before their cases could reach the appellate court for 
decision. Obviously, the Georgia courts have similar powers 
to restore petitioners to the status quo.14

In addition to the above, there are other principles by 
which this Court may find that there is no mootness bar 
to its reaching the important issues presented here. This 
Court has frequently decided cases on their merits, even 
though the central dispute between parties to the litiga­
tion has ended.15 16 Thus, in United States v. Trans-Missouri

14 Although no Georgia cases can be found which specifically grant a 
wrongfully evicted tenant the right to be readmitted, petitioners’ prayers 
that the dispossessory warrants be vacated, and for such other and fur­
ther relief as is just could be read by the Georgia courts as a request 
for readmission in the event of eviction. In Lehmann v. West Seventy- 
Sixth St. Man. Corp., 67 N.Y.S. 2d 91 (Sup. Ct. N.Y.C. 1946), a New 
York Court granted the tenant repossession o f the apartment from which 
she had been evicted, saying: "With the setting aside of the warrant of 
dispossess, the tenant became entitled to possession o f the premises from 
which she had been removed by virtue of the warrant.”  (Id. p. 92.) And, 
recent New York cases have granted tenants the right to repossession 
where the wrongfulness of their evictions arose from non-service of proc­
ess. Albany v. White, 46 Misc. 2d 915, 261 Misc. Supp. 2d 361 (1965); 
Marluted Realty Corp. v. Decker, 260 N.Y. Supp. 2d 988. Certainly, if
Georgia courts have equitable power to grant a landlord an injunction 
against waste by the tenant during his possession, Jones v. Gammon, 123 
Ga. 47, 50 S.E. 982, or to prevent a landlord from interfering with the 
tenant’s possession during the tenancy, Shoals Power Co. v. Fortson, 138 
Ga. 460, 75 S.E. 606, they have power to readmit a tenant to possession 
where he proves that the dispossessory warrant was unlawfully executed.

16 The purpose of the litigation is often determinative. See, generally, 
Diamond, Federal Jurisdiction To Decide Moot Cases, 94 U. Pa. L. Rev. 
125 (1946); Note, Cases Moot On Appeal: A Limit On The Judicial 
Power, 103 U. Pa. L. Rev. 772 (1955). Here, the prayer for relief indi­
cates a far broader purpose than mere injunction o f the eviction proceed­
ings. Among the claims for relief were: (1) that § 61-303 be declared 
unconstitutional; (2) that an order be issued to vacate the ex parte order 
in the nature of a dispossessory warrant, on the basis o f allegations of



19

Freight Ass’n., 166 TJ.S. 290, 308, and Southern Pacific 
Terminal Co. v. Interstate Commerce Commission, 219 
U.S. 491, 515, the Court decided appeals on the ground 
that the cases were vested with a substantial public in­
terest which was not extinguished by disappearance of the 
central contest between the parties.

In Trans-Missouri Freight Ass’n., supra, an anti-trust 
case, the United States sought both to enjoin an associa­
tion of railroads from alleged violations of the Sherman 
Act and to dissolve the association. Pending appeal, the 
association voluntarily dissolved, but the Court held that 
the case had not become moot, stressing the public nature 
of the rights being asserted (166 U.S. at 308, 310):

Private parties may settle their controversies at 
any time, and rights which a plaintiff may have had 
at the time of the commencement of the action may 
terminate before judgment is obtained or while the 
case is on appeal, and in any such case the court, 
being informed of the facts, will proceed no further 
in the action. Here, however, there has been no ex­
tinguishment of the rights (whatever they are) of the 
public, the enforcement of which the government has 
endeavored to procure by a judgment of a court under 
the provisions of the act of Congress above cited. The 
defendants cannot foreclose those rights nor prevent 
the assertion thereof by the government as a substan­
tial trustee for the public under the act of Congress, 
by any such action as has been taken in this case.

fact and exhibits attached to the petition for injunction; (3) that a rule 
nisi issue to the Sheriff o f Fulton County restraining him from execut­
ing the dispossessory warrant; (4) that petitioner(s) have sueh other 
and further relief as is meet and just in the premises (R -W  10, 11, 12; 
R-M 11, 12).



20

And, in Southern Pacific Terminal Go., supra, an appeal 
by a carrier from an order of the Interstate Commerce 
Commission barring the grant of certain privileges to a 
shipper, the Court held that there was a continuing public 
interest in the legality of certain kinds of I.C.C. orders. 
Thus, even though the order expired by its own terms 
pending appeal and could not be affected by the Court 
judgment, the Court decided the case on the merits:

In the case at bar the order of the Commission may 
to some extent (the exact extent it is unnecessary to 
define) be the basis of further proceedings. But there 
is a broader consideration. The question involved in 
the orders of the Interstate Commerce Commission 
are usually continuing (as are manifestly those in the 
case at bar), and these considerations ought not to 
be, as they might be, defeated, by short-terms orders, 
capable of repetition, yet evading review, and at one 
time the government and at another time the carriers, 
have their rights determined by the Commission with­
out a chance of redress. (219 U.S. at p. 515.)

In determining the issue of whether an appeal has be­
come moot where the central controversy has ended, the 
determining factor is whether there is a likelihood of 
continuation of the conduct sought to be enjoined. In 
Trans-Missouri Freight Ass’n., supra, it appeared that 
members of the voluntarily dissolved association of defen­
dants would reform another association. And, in Southern 
Pacific Terminal Co. the continuing public interest in the 
kinds of orders the I.C.C. could lawfully issue was clear. 
Similarly, where defendants assert that conduct voluntarily 
ceased was not illegal, there is a likelihood that it will be 
resumed and this Court has often held such cases are not 
moot. Walling v. Helmerich <# Payne, Inc., 323 U.S. 37,



21

42, 43; Goslien Mfg. Co. v. Hubert A. Myers Mfg. Co., 242 
U.S. 202, 207, 208.

It is certain that without a determination of the consti­
tutionality of § 61-303, the statute will continue to foreclose 
untold numbers of indigent tenant-defendants from pre­
senting meritorious defenses to summary ejectment claims. 
The Marshal of the Civil Court of Fulton County, Georgia 
stated (Affidavit, R-W 17; R-M 18) that in Fulton County 
alone, in recent months, approximately 1,400 dispossessory 
warrants per month were issued, and that defensive plead­
ings were filed in less than one per cent (1%) of the cases. 
The Attorney General of the State of Georgia argued in 
the brief filed below for the State of Georgia, that § 61-303 
was a reasonable measure by which Georgia could protect 
the property rights of owners of rental property and did 
not violate the Fourteenth Amendment.

Because of the seriousness and importance of the ques­
tions presented, it is imperative that this Court review 
the decision below and resolve these issues.

The Question of the Right of an Indigent Tenant 
to Remain in Possession and Defend Against Eviction 
Without Posting Substantial Security Required By a 
State Statute Is of General Importance.

This case raises an important constitutional issue in the 
developing field of the law of poverty—and in a particu­
larly crucial area of that field, landlord-tenant law. The 
ease of the obtaining of a summary eviction order by the 
landlord simply by filing an affidavit, combined with the im­
possibility of a poor tenant defending against it because 
he cannot post security, permits evictions to occur almost 
casually. These evictions may be unwarranted and arbi­
trary, and may result only from inability of the tenant



22

to post a security so large in relation to the monthly rent 
that it bears no relation to the tenant’s ability to meet his 
monthly obligations as they become due.

To a tenant who is poor, eviction raises in the most 
extreme form possible the problem of security in housing. 
It is important to the development of sound family life 
that the family be able to remain in one place for sub­
stantial periods of time—to develop stable relationships 
with the neighbors, the schools, etc. Family disruption 
has long been known to be a crucial agent in maintaining 
the cycle of poverty. There is not only a social disruption 
cost, but an economic cost in moving which a poor family 
has particular difficulty in bearing.16

Within the coniines of one’s income, housing which is 
voluntarily chosen by an individual family will probably 
be more suitable to its particular needs than housing not 
so chosen. No matter how inadequate the housing in which 
poor families reside, their chances of finding equal or bet­
ter housing upon eviction are rather slim—as the experi­
ence with urban renewal programs in city after city has 
demonstrated. When a poor person is also a Negro or 
other minority group member, as are the petitioners here, 
a housing market in which opportunities are already in­
adequate because of economic factors becomes much more 
severely circumscribed through the operation of prejudice.17

The existence of summary eviction procedures in which 
there is a substantial economic obstacle preventing a tenant

16 Alvin L. Schorr, Slums and Social Insecurity (U.S. Government 
Printing Office, 1963), pp. 68-73, 86; Carl Sehier, “ Protecting the Inter­
ests of the Indigent Tenant: Two Approaches,”  54 California Law Re­
view 670 (1966).

17 Schorr, op. cit., pp. 61-68, 81-87, 96-97, 98-120; Millspaugh, “Prob­
lems and Opportunities of Relocation,”  26 Law and Contemporary Prob­
lems, 6, 20-24 (1961).



23 *
i

from contesting eviction, places an enormous amount of 
arbitrary power in the hands of the landlord which he 
exercises in collaboration with the State. The existence 
of detailed housing codes in many cities demonstrates the 
need to prevent non-resident landlords from allowing the 
housing in which poor people reside to deteriorate.18 Such 
codes may be effective in their intended purpose of secur­
ing adequate housing to the poor, only to the extent that 
those who are injured by their violation complain to 
appropriate authorities about such violations. However, 
where a tenant can be easily evicted by a landlord in a 
summary proceeding in retaliation for such a complaint, 
it is clear that many tenants will be intimidated into suf­
fering quietly.19

Several other states have summary eviction statutes 
similar to the one in issue which on their face impose a 
substantial security requirement for possible damages in 
advance on a tenant before permitting him to remain in 
possession to defend against eviction. These include:

(1) Arkansas. Arkansas Statutes Annotated (1947), Title 
34, §1510; (2) California. California Code of Civil Pro­
cedure, § 1166a; (3) Indiana. Burns Indiana Statutes An­
notated (1933), §§3-1304 through 3-1306; (4) Mississippi. 
Mississippi Code Annotated (1942), Title 7, § 957; (5) 
Texas. Texas Rules of Civil Procedure (1955), Rule 740; 
(6) Virginia. Virginia Code Annotated (1950), Title 55, 
§242; (7) Washington. Revised Code of Washington

18 More than 650 cities have adopted housing codes since 1954. Note, 
“ The Enforcement of Municipal Housing Codes,”  78 Harvard Law Re­
view 801, 803 (1965); Schorr, op. cit., pp. 87-96.

19 Patricia M. Wald, Law and Poverty: 1965, Report to the National 
Conference on Law and Poverty sponsored by the Attorney-General and 
the Office of Economic Opportunity of the United States (Washington, 
D. C .: 1965), p. 15; Robert S. Schoshinski, “ Remedies of the Indigent 
Tenant: Proposal for Change,”  54 Georgetown Law Journal 519, 541 
(1966).



24

(1961), § 59.12.100; (8) West Virginia. West Virginia Code 
(1961), § 3672.20

The issue of the potential denial of the Constitutionally 
required equal protection of the laws to a tenant who is 
poor and cannot post substantial security to prevent evic­
tion pending adjudication of the merits may therefore be 
raised by all of these statutes.

CONCLUSION

For the above reasons, the petition for writ of certiorari 
should be granted.

Bespectfully submitted,

J ack Greenberg
James M. Nabrit, III
Charles H . J o n e s , J r .
Charles Stephen R alston 

10 Columbus Circle 
New York, New York 10019

H oward Moore, J r .
859% Hunter Street, N.W. 
Atlanta, Georgia 30314

Attorneys for Petitioners

20 It should be noted that while the general procedural laws o f many 
states provide that bonds for court costs may be waived in the case of 
indigency, as does Georgia (Title 24, §3413), the above cited bond pro­
visions are specific requirements o f the landlord-tenant sections of the 
respective state statutes apparently intended to secure the landlord’s right 
to rent, rather than the payment of court costs to the state. With this 
premise, and without considering the possible Constitutional defect of 
such a statutory requirement, a State court might conclude that it would 
not make sense to waive the tenant’s security requirement on the ground 
of the tenant’s indigency—as the Georgia courts have held— even when 
there is a general procedural provision waiving bonds for court costs.



APPENDIX



APPENDIX

Order

(March 2, 1966)

F ulton County S uperior Court (G eorgia)

W illie W illiams 

vs

J oseph N. Sharper

The petition in the above case having been presented 
to the Court for an ex parte interlocutory injunction, 
and defendant being present, and objecting to same, and 
defendant having made a motion to dismiss the said peti­
tion, and after hearing argument thereon:

I t Is Ordered, that the ex parte interlocutory injunction 
be denied, and further ordered that the defendant’s motion 
to dismiss be sustained, and the petition in the above case 
is dismissed.

This 2nd day of March 1966.

/ s /  L uther A bruso
Judge, Superior Court, A.J.C. 
Minutes 389, P age 273

Filed in office this the 
2 day of Mar., 1966 
W. M. Callaway 

Deputy Clerk



2a

Order

(March. 2, 1966)

F ulton County Superior Court (Georgia)

Sam Martin 

vs

J oseph N. Shaffer

The petition in the above case having been presented 
to the Court for an ex parte interlocutory injunction, 
and defendant being present, and objecting to same, and 
defendant having made a motion to dismiss the said peti­
tion, and after hearing argument thereon:

I t I s Ordered, that the ex parte interlocutory injunction 
be denied, and further ordered that the defendant’s motion 
to dismiss be sustained, and the petition in the above case 
is dismissed.

This 2nd day of March 1966.

/s/ L uther A bruso
Judge, Superior Court, A.J.C. 
M inutes 389, P age 273

Filed in office this the 
2 day of Mar., 1966 
R uby H. W ard 

Deputy Clerk



(Decided: June 23, 1966)

S upreme Court op Georgia

23559. W illiams v. Shafper

23560. Martin v. Shaffer

Quillian, Justice. Willie Williams and Sam Martin in­
stituted separate actions against their landlord Joseph N. 
Shaffer. These cases are in all material aspects alike. In 
each case, brought through the same counsel, the injunction 
is sought to prevent the plaintiff’s eviction in a dispos- 
sessory warrant proceeding on the sole grounds that “an­
notated Code section 61-303” is unconstitutional in that it 
requires the tenant in such an action to file a bond, as a 
condition to entering a counter affidavit. The trial judge 
upon oral motion struck the petition in each case.

The constitutional attack on the statute is couched in 
the following language: “petitioner avers that he has no 
plain and adequate remedy at law, by reason of the facial 
unconstitutionality of Title 61, Georgia Code Annotated, 
Section 303. Said statute violates the due process and 
equal protection of law clauses of the Fourteenth Amend­
ment, United States Constitution, and Article I, para­
graphs 3 and 25, Constitution of the State of Georgia of 
1945, in that, said statute invidiously bars petitioner from 
obtaining judicial review in the courts of the State of 
Georgia of any defenses which he may have to said eviction 
solely because of his poverty and denies the petitioner 
equal access to the courts of the State of Georgia. Said 
statute reads as follows: ‘61-303. . . . The tenant may 
arrest the proceedings and prevent the removal of himself 
and his goods from the land by declaring on oath that his 
lease or term of rent has not expired, and that he is not

Opinion



4a

holding possession of the premises over and beyond his 
term, or that the rent claimed is not due, or that he does 
not hold the premises, either by lease, or rent, or at will, 
or by sufferance, or otherwise, from the person who made 
the affidavit on which the warrant issued, or from anyone 
under whom he claims the premises, or from anyone claim­
ing the premises under him: Provided, such tenant shall 
at the same time tender a bond with good security, payable 
to the landlord, for the payment of such sum, with costs, 
as may be recovered against him on the trial of the 
case. . . As applied said statute bars petitioner from 
directly challenging the dispossessory proceedings in the 
courts of the State of Georgia solely because of his poverty 
and thereby denied petitioner due process and equal pro­
tection of the law in violation of the Fourteenth Amend­
ment, United States Constitution and of Article II, para­
graphs 3 and 25, Constitution of the State of Georgia of 
1945.” The appeals in each case are identical and each 
reads that the plaintiff “appeals to the Supreme Court of 
Georgia from the final order and judgment denying plain­
tiff’s prayers for injunctive relief and dismissing his peti­
tion on oral motion of the defendant. . . .”

The same enumeration of error and statements are con­
tained in each appellant’s brief, which read: “1. Whether 
Title 61, Georgia Code Annotated, Section 303, requiring 
the posting of a bond as a condition precedent to making 
a defense by a tenant in dispossessory proceedings, con­
stitutes a violation of the Fourteenth Amendment, Consti­
tution of the United States, and of Article I, paragraphs 3 
and 25, Constitution of the State of Georgia of 1945, where 
the tenant is impoverished and unable to provide such 
bond. . . . [Grounds 2 and 3 need not be set out here.] 
Appellant abandons enumeration of error 2 (a), (b) and

Opinion



5a

3 and does not insist on them on appeal. Appellant relies 
entirely upon Ms challenge to the constitutionality of Sec­
tion 303 as the grounds for reversal.” It is frankly stated 
in each brief: “The court below, on March 2, 1966, dis­
missed the petition and denied all relief, without allowing 
Sheriff Grimes to be named as a party-defendant. Appel­
lant then, on March 2, 1965, filed a notice of appeal. The 
court below refused to stay the dispossessory proceedings 
and on March 5, 1966, the Sheriff of Fulton County evicted 
appellant from the premises.”

In an effort to set forth a right to a declaratory judg­
ment each petition alleges: “there is an actual controversy 
existing between him and the defendant as to petitioner’s 
right to resist said dispossessory proceedings without post­
ing bond and to proceed on a pauper’s affidavit.” There 
is no allegation of facts or circumstances which show that 
an adjudication of the plaintiff’s rights is necessary in 
order to relieve the plaintiff from the risk of taking any 
future undirected action incident to his rights. Incidental 
to the prayer for injunction is the following prayer: “ that 
the petitioner have a declaratory judgment declaring, ad­
judging and decreeing Title 61, Georgia Code Annotated, 
Section 303, unconstitutional, null and void, upon its face 
and as applied, under the due process and equal protection 
clause of the Fourteenth Amendment, United States Con­
stitution, and Article II, paragraphs 3 and 25, Constitu­
tion of the State of Georgia of 1945.” Held:

The Appellate Practice Act of 1965, embodied in Code 
Ann. §6-701 (Ga. L. 1965, pp. 18, 20), brings forward the 
provision contained in previous Codes: “Nothing in this 
paragraph shall require the appellate court to pass upon 
questions which are rendered moot.” This court held in 
Glower v. Langley, 153 Ga. 154 (------ S E ------ ) :  “Excep­
tion is taken to the refusal of an injunction to restrain

Opinion



6a

the execution of a dispossessory warrant. The brief of 
counsel for the plaintiff recites that ‘since the filing of the 
bill of exceptions in this case, about ten days ago, plaintiff 
was dispossessed by the marshall of the municipal court; 
she is no longer in possession of the premises involved in 
this action; and therefore the questions involved are moot.’ 
The bill of exceptions is therefore dismissed.” As held in
Griffin v. Grantham, 220 Ga. 474 (----- SE2d------- ) :  “ since
all that was sought to be enjoined has been done, the case 
has become moot and the writ of error must be dismissed.” 
Similar pronouncements are found in Pickett v. Georgia,
Fla. &c. R. Co., 214 Ga. 263 (—  SE 2d------ ) ;  Lorenz v.
HeKalb County, 215 Ga. 731 (------  SE2d ------) ; Espey v.
Village of North Atlanta, 218 Ga. 429 (------ SE2d ------•);
Woods v. State of Ga., 219 Ga. 503 (------  SE2d ------ ) ;
Trainer v. City of Covington, 220 Ga. 228 (-—— SE2d------ ).
The appellants having been evicted in the present cases, 
the suits to enjoin their removal from the rented premises 
become moot.

“ ‘The object of the declaratory judgment is to permit 
determination of a controversy before obligations are 
repudiated or rights are violated.’ Rowan v. Herring, 
214 Ga. 370, 374 (105 SE2d 29). . . . Where, as here, the 
petition shows that the rights of the parties have already 
accrued and no facts or circumstances are alleged which 
show that an adjudication of the plaintiff’s rights is neces­
sary in order to relieve the plaintiffs from the risk of 
taking any future undirected action incident to their rights, 
which action without direction would jeopardize their 
interests, the petition fails to state a cause of action for 
declaratory judgment.” So the suits as related to declara­
tory judgment not only become moot, but under the quoted 
pronouncement set forth no cause for that relief.

Appeal dismissed. All the Justices concur.

Opinion



Judgment

(Decided: June 23, 1966)

S upreme Court of Georgia

The Honorable Supreme Court met pursuant to adjourn­
ment. The following judgment was rendered:

W illie W illiams v. J oseph S haffer et al.

This case came before this court upon an appeal from 
the Superior Court of Fulton County; and, after argument 
had, it is considered and adjudged that the appeal be dis­
missed. All the Justices concur.

Judgment

(Decided: June 23, 1966)

Supreme Court of Georgia

The Honorable Supreme Court met pursuant to adjourn­
ment. The following judgment was rendered:

Sam Martin v. J oseph Shaffer et al.

This case came before this court upon an appeal from 
the Superior Court of Fulton County; and, after argument 
had, it is considered and adjudged that the appeal be dis­
missed. All the Justices concur.



8a

Denial o f Rehearing

(Decided: July 7, 1966)

Supreme Court op Georgia

The Honorable Supreme Court met pursuant to adjourn­
ment. The following order was passed:

W illie W illiams v. J oseph S haffer et al.

Upon consideration of the motion for a rehearing filed 
in this case, it is ordered that it be hereby denied.

Denial of Rehearing

(Decided: July 7, 1966)

Supreme Court of Georgia

The Honorable Supreme Court met pursuant to adjourn­
ment. The following order was passed:

Sam Martin v. J oseph Shaffer et al.

Upon consideration of the motion for a rehearing filed 
in this case, it is ordered that it be hereby denied.



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