Hanner v. DeMarcus

PETITIONER: Hanner
RESPONDENT: DeMarcus
LOCATION: Formerly Sam’s Stationery and Luncheonette

DOCKET NO.: 497
DECIDED BY: Warren Court (1967-1969)
LOWER COURT:

CITATION: 390 US 736 (1968)
ARGUED: Mar 28, 1968
DECIDED: Apr 29, 1968

Facts of the case

Question

Media for Hanner v. DeMarcus

Audio Transcription for Oral Argument - March 28, 1968 in Hanner v. DeMarcus

Earl Warren:

Number 497, Josephine Hanner, petitioner versus Cecil Demarcus et al.

Mr. Haggerty.

Philip M. Haggerty:

May it please the Court.

Honorable Chief Justice I regret that my talents of narrative and description are probably not quite equal to the teller Mrs. Hanner and I think would've been more appropriate if her pleadings have perhaps been written by Charles Dickens.

Mrs. Hanner attempted to secure divorce in Maricopa County, Phoenix, Arizona and the 1959, these proceedings were held as a result of the somewhat complicated property situation, the trial court evidently felt that it was not equal to the accounting practices required and appointed a special master.

The respondent herein Cecil Demarcus to assist the court in determining what her property was, how she had acquired it and therefore what property might be considered her property and what the community property of herself and her husband.

The Court decided in the spring of 1959 that the special master's report would be accepted and there's this customarily and accordance with Rule 53 (a) of our rules which is of course the duplicate of the federal rules to award him a fee in the amount of approximately $5500.00.

It's stated at that time that if this fee were not paid by Mrs. Hanner and they charged entirely to her within 60 days that he could have execution therefore in accordance with the statute.

Potter Stewart:

He had of course full notice of that, did she?

Philip M. Haggerty:

She was a party to the case, it was part of a judgment of which she was a party to the case she obviously had notice of it.

Potter Stewart:

The judgment was given him and award to him of $5500.00 with authority to execute upon that judgment in accordance with the statutes sets the judgment to be paid within about 60 days?

Philip M. Haggerty:

60 days was time that set by the trial court.

60 days is also the time limit for an appeal in Arizona and an appeal was taken to the Supreme Court of the State of Arizona.

The record as we play with some facts to the effect that Mrs. Hanner's counsel and this particular CBA were practicing in the same small law building or small office building in Phoenix, Arizona that they saw each of the constantly that no reference was made by him to the fact that he might be proceeding by way of execution and by one affidavit in the record by Mrs. Hanner herself to the effect that she was affirmatively advised by him that he would wait the results of the appeal of the divorce action before any steps would be taken.

This is not particularly a natural in view of the fact that she did appeal to the Supreme Court of Arizona, the Court's decision that she had to pay the entire amount of the fee.

She did not object to the actual dollars and cents just to the fact that her husband was not required to pay any of it at all.

In September of 1959, Mr. Demarcus without any notice caused the writ of execution to be issued out of the clerk's office delivered to the sheriff in Maricopa County and levied upon her real properties certain portions of it four lots located in a commercial street in Phoenix, Arizona.

The method of levy is set forth in our statute and noticed in our brief that is simply by filing a copy of the writ of execution with the county recorder, this was done.

There is a requirement that execution sales be advertised.

This was done.

Three copies were pointed on the bulletin boards of the courthouse at Maricopa County.

I assume the members of the Court have seen courthouse bulletin boards and are aware the general condition this is no better or worst than any other, they're hundreds of notices posted on the board.

Notice was published in a weekly paper which is devoted almost exclusively and entirely to legal notices, reprints of exact articles have been corporation probate proceedings about a hundred page is about 85 must be solid legal advertising.

Mr. Demarcus brought the property, entered execution sale for the amount of his judgment plus some dollars which apparently were cost in connection with the execution and perhaps interest from the time of the judgment.

Byron R. White:

Was this -- did you say there was posting on the property?

Philip M. Haggerty:

Not on the property itself.

Byron R. White:

Is that required?

Philip M. Haggerty:

It is not required.

Byron R. White:

And is this -- this system you described is not in characteristic in state execution and in foresales, does it?

Philip M. Haggerty:

This is the system, statutory system.