Law Commons^™

Manipulating Forum Jurisdiction And Generating A Law Of Employee Free Speech, Ivan C. Rutledge

Mercer Law Review

The National Labor Relations Act contains protection of employee solicitation, handbilling, and choice of representatives that the first and fourteenth amendments do not vouchsafe to other members of society. This essay is written to review the development of this thesis and to argue that the United States Supreme Court has fashioned a regime of forum jurisdiction surrounding employees' rights to speak and print that is both unique and exquisitely complex. Two patterns of allocating jurisdiction, both subsumed under the fuzzy expression "federal pre-emption," engender the complexity. This article will first review the Court's precedents before the Taft-Hartley Act in 1947, …

Practice And Procedure, R. Neal Batson, Ben F. Johnson Iii

Mercer Law Review

This article opened last year with a discussion of McGovern v. American Airlines, Inc. and the principle that it is the plaintiff's burden to allege and invoke federal jurisdiction. McGovern was undercut somewhat by the 1976 case of Skidmore v. Syntex Laboratories, Inc. Indeed, one dissenting judge argued that the Fifth Circuit was permitting jurisdiction even though the plaintiff had failed to make even a prima facie showing of essential jurisdictional facts. The plaintiff, a Texas citizen, brought a products-liability diversity action against one Delaware corporation and one Panamanian corporation. The plaintiff, even after substantial discovery, was unable to demonstrate …

Post-Judgment Garnishment Without Notice And A Hearing Is Constitutional, Robert L. Porter Jr.

Mercer Law Review

In Brown v. Liberty Loan Corp., the Court of Appeals for the Fifth Circuit held that Florida's post-judgment garnishment statutes satisfy due process requirements even though they fail to provide the judgment debtor with notice and an opportunity for a hearing on his entitlement to a statutory wage exemption before wages are attached.

Amendments May Relate Back To Validate Service Of Process, Michael G. Gray

Mercer Law Review

Leniston v. Bonfiglio is worthy of inspection not only because of the proposition for which the case stands but also because of the manner in which the Georgia Court of Appeals chose to convey this proposition to the reader. Mrs. Alice Bonfiglio filed her complaint in the State Court of DeKalb County for $200 in damages to her automobile, allegedly precipitated by the negligence of defendant, Mrs. Leniston. Service of process was effectuated by a deputy marshal's tacking the summons to the door' of Mrs. Leniston's most notorious place of abode in DeKalb County, pursuant to C.P.A. § 4(d)(6).1 Contending …

Party Not Otherwise A Federal-Court Defendant May Not Be A 'Pendent Party' In A § 1983 Claim, Gary D. Simpson

Mercer Law Review

In Aldinger v. Howard, the U.S. Supreme Court held that a party not already in federal court under a federal claim may not be brought into federal court under a state claim, even though the plaintiff's state claim has a "common nucleus of operative fact" with the plaintiff's federal claim against another party. This limitation on "pendant party" jurisdiction, however, was restricted to state claims asserted to be "pendent" to 42 U.S.C.A. § 19832 and its jurisdictional corollary, 28 U.S.C.A. § 1343(3).

Petitioner Aldinger had a civil-rights claim under § 1983 against Respondent Howard, the treasurer of Spokane County, …

Trial Practice And Procedure, J. Ralph Beaird, C. Ronald Ellington

Mercer Law Review

Each year the Georgia appellate courts decide several hundred cases that raise issues of trial practice and procedure. The period surveyed in this article covers the tenth year of cases interpreting the Long-Arm Statute and the ninth year of cases decided under the Civil Practice Act. The gradual judicial development of these important laws has been fascinating to watch and comment on. A steady improvement in both the quality and predictability of these decisions can be observed and should be applauded.

The cases selected for comment herein are those deemed the most significant because they either indicate a new direction …

Assault Leading To Homicide May Be Used To Invoke Felony-Murder Rule, William P. Adams

Mercer Law Review

In Baker v. State, the Georgia Supreme Court held that "the Georgia legislature intended felony murder to encompass all felonies as 'felony' is defined in Code §26-401(e)." The court refused to adopt the "merger" doctrine that has been applied by some states to the felony-murder rule., The defendant was convicted of felony murder' for the shooting death of Roger Clark and sentenced to life imprisonment. Clark and one other person entered the defendant's bedroom before 5:30 one morning to collect a debt allegedly owed to Clark by the defendant. The defendant fired one shot over the heads of the …

Summary Judgment For Divorce Required When One Spouse Swears To Irretrievable Breakdown, Kenneth R. Carswell

Mercer Law Review

In Manning v. Manning, the Supreme Court of Georgia held that a divorce must be granted on a motion for summary judgment after one spouse alleges an irretrievable breakdown of the marriage and then swears in an affidavit that he is unwilling to cohabit with his spouse, that there are no prospects for reconciliation and that the marriage is irretrievably broken. There is, at that point, no issue of fact for the trial court to resolve, the supreme court said.

The husband in Manning filed a complaint for divorce alleging that the marriage was irretrievably broken. The wife in …

Practice And Procedure, R. Neal Batson, Ben F. Johnson Iii

Mercer Law Review

No abstract provided.

A Glance At Summary Judgment, Thomas J. Browning

Mercer Law Review

EDITOR'S NOTE: A motion for summary judgment is one of the most frequently used pre-trial motions. The following article was written as a quick-reference index for the Judges of the Cobb Superior Court in ruling on these motions. In keeping with our policy of presenting articles to aid the practicing attorney, as well as the academician, we are including the article in this year's Survey. This is the authority practicing attorneys will no doubt face from the Georgia judiciary on a motion for summary judgment.

I. PURPOSE

Purpose of Summary Judgment: A primary purpose of the summary judgment procedure is …

Practice And Procedure, Arnold Shulman, Joseph C. Jackson

Mercer Law Review

Unfortunately in writing on the subject of practice and procedure there is little or no opportunity to indulge in attempts at anticipatory law. The writers of substantive topics may, on occasion, give a conning tower view of what should be the law and theorize on the progressive trend in various fields. However firm the trend may be toward simplification of practice and procedure, the facts only too well bear out the statement that pleading is statutory and rule-made law, and leaves to the courts very little ground for interpretive opinions. Also, all too frequently, the courts take occasion to use …

Practice And Procedure, Wiley H. Davis

Mercer Law Review

It has long been recognized that a large percentage of the cases decided by the appellate courts of Georgia are decided in whole or in part upon procedural points. Because of this fact, any attempt to survey the matters decided on such points during any twelve-month period must include reference to many cases, however brief the treatment. In making such a survey, one frequently faces the problem of deciding whether a holding is based primarily upon procedure or whether the case should be considered substantive in nature. Of course, some procedure is involved in the hearing, trial or appeal of …