ML MANAGER, LLC, AND SOJ LOAN, LLC, APPELLANTS, V. DALE M. JENSEN AND VICKI S. JENSEN, APPELLEES, AND PIONEER VENTURES, LLC, GARNISHEE-APPELLEE.
No. S-12-1147
Supreme Court of Nebraska
January 10, 2014
287 Neb. 171
Nebraska Advance Sheets
- Garnishment: Appeal and Error. Gаrnishment is a legal proceeding. To the extent factual issues are involved, the findings of a garnishment hearing judge have the effect of findings by a jury and, on appeal, will not be set aside unless clearly wrong.
- Statutes: Appeal and Error. Statutory interpretation is a question of law that an appellate court resolves independently of the trial court.
- Garnishment: Statutes. Garnishment in aid of execution is a legаl remedy unknown at common law and was created by statute.
- Garnishment: Statutes: Case Disapproved. As set out in
Neb. Rev. Stat. § 25-2218 (Reissue 2008) , the code of civil procedure, which encompasses the entirety of chapter 25 of the Nebraska Revised Statutes, should not be strictly construed. To the extent that NC+ Hybrids v. Growers Seed Assn., 219 Neb. 296, 363 N.W.2d 362 (1985), and Spaghetti Ltd. Partnership v. Wolfe, 264 Neb. 365, 647 N.W.2d 615 (2002), or other Nebraska cases, have held that chapter 25 statutes in derogаtion of the common law are to be strictly construed, they are now disapproved on those grounds. - Garnishment: Statutes: Appeal and Error. Because the garnishment statutes are part of chapter 25 of the Nebraska Revised Statutes, an appellate court views them under the general rules of statutory interpretation.
- Statutes: Appeal and Error. The rules of statutory interpretation require an appellate court to give effect to the entire language of a statute, and to reconcile different provisions of the statutes so they are consistent, harmonious, and sensible.
- ____: ____. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.
- ____: ____. An appellate court will give effect to all parts of a statute and avoid rejecting as superfluous or meaningless any word, clause, or sentence.
- Statutes. It is not within the province of a court to read a meaning into a statute that is not warranted by the legislative language.
- Garnishment: Legislature: Intent. The Nebraska Legislature sought to protect a garnishee from the often unnecessary and sometimes oppressive litigation by demanding an expeditious disposition of garnishment proceedings.
- Garnishment: Notice. A garnishee is not required to provide notice, through service or any other means, of the interrogatory answers to the garnishor.
Appeal from the District Court for Lancaster County: STEPHANIE F. STACY, Judge. Affirmed.
Terry R. Wittler and Gregory S. Frayser, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for garnishee-appellee.
HEAVICAN, C.J., CONNOLLY, STEPHAN, MILLER-LERMAN, and CASSEL, JJ.
PER CURIAM.
NATURE OF CASE
This is an appeal from an order overruling an “Objection to Garnishee‘s Answers to Interrogatories” on the finding that the objection was filed after the 20-day time period set forth in
BACKGROUND
ML Manager obtained a valid default judgment against Dale M. Jensen and Vicki S. Jensen for the principal amount of $52,024,377.16. On April 24, 2012, ML Manager had a summons and order of garnishment in aid of execution issued to Pioneer Ventures, LLC. Along with the summons, ML Manager served Pioneer Ventures with interrogatories. The summons stated that “[y]ou arе required by law to answer the attached Interrogatories and file them in this court within 10 days of service of this Summons upon you.”
On April 30, 2012, Pioneer Ventures timely filed its answers to the interrogatories with the clerk of the court. ML Manager was not served with the answers, but independently learned of the answers on May 7, 2012. On May 25, ML Manager filed an objection to the answers to interrogatories. ML Manager requested a hearing on the issues raised in its objection.
A hearing was held on the objections. No evidence was presented, and there is no bill of exceptions. In its order, the trial court ruled that ML Manager‘s objection was untimely under
ASSIGNMENTS OF ERROR
ML Manager assigns, restated and summarized, that the trial court erred by (1) ruling that the 20-day time limit of
STANDARD OF REVIEW
[1] Garnishment is a legal proceeding. To the extent factual issues are involved, the findings of a garnishment hearing judge have the effect of findings by a jury and, on appeal, will not be set aside unless clearly wrong.1
[2] Statutory interpretation is a question of law that an appellate court resolves independently of the trial court.2
ANALYSIS
ML Manager argues that the 20-day period to file an application should not have begun until ML Manager had received actual notice that the interrogatory answers had been filed. In support of this contention, ML Manager argues that (1) the garnishment statutes require service and notice, (2) the rules of civil procedure require a garnishee to serve its answers, and (3) ML Manager should be excused for failing to file the objection within 20 days. We address these arguments in that order.
[3] Garnishment in aid of execution is a legal remedy unknown at common law and was created by statute.3 Generally, in cases where a court enters judgment in favor of a creditor, the judgment creditor may, as garnishor, request that the court issue a summons of garnishment against any person or business owing money to the judgment debtor.4 As garnishee, the person or business owing money to the judgment debtor must answer written interrogatories furnished by the garnishor to establish whether the garnishee holds any property or money belonging to or owed to the judgment debtor.5 The garnishee is required to answer within 10 days from the date of service.6 If the garnishor is not satisfied with the interrogatory answers, it has 20 days to file an application for determination of the liability of the garnishee.7 Upon establishing through pleadings and trial that the garnishee holds property or credits of the judgment debtor, the garnishee must then pay such amounts to the court in satisfaction of the garnishor‘s judgment against the judgment debtor, subject to certain statutory exceptions with regard to wages.8
To determine whether the garnishee is required to рrovide service or notice, we must look to the statutes.
The garnishee shall answer, under oath, all the interrogatories put to him touching the property of every description and credits of the defendant in his possession or under his control at the time of the service of the summons and interrogatories, and he shall disclose truly the amount owing by him to the defendant, whether due or not, and, in
case of a corporation, any stock therein held by or for the benefit of the defendant, at the time of the service of the summons and interrogatories. The fee for filing of answer may be taxed and collected in the same manner as other costs in such prоceedings.
Section 25-1056 specifies that “[t]he summons shall be returnable within ten days from the date of its issuance and shall require the garnishee to answer within ten days from the date of service upon him or her.” If the garnishee fails to answer,
If the garnishee appears and answers and his or her disclosure is not satisfactory to the plaintiff, or if he or she fails to comply with the order of the court, by delivering the property and paying the money owing into court, or giving the undertaking required in section 25-1029, the plaintiff may file an aрplication within twenty days for determination of the liability of the garnishee. The application may controvert the answer of the garnishee, or may allege facts showing the existence of indebtedness of the garnishee to the defendant or of the property and credits of the defendant in the hands of the garnishee. The answer of the garnishee, if one hаs been filed, and the application for determination of the liability of the garnishee shall constitute the pleadings upon which trial of the issue of the liability of the garnishee shall be had. If the plaintiff fails to file such application within twenty days, the garnishee shall be released and discharged.
RULES OF STATUTORY INTERPRETATION FOR GARNISHMENT STATUTES
Under our traditional rules of interpretation, if a statute is in derogation of common law, it is to be strictly construed.9 Starting in 1985, we have repeatedly held that, being in derogation of common law, garnishment statutes should be strictly construed.10 But in doing so, we ignored
In 1985, this court, relying on cases from Michigan and Wisconsin, applied strict construction to garnishment statutes for the first time.14 In doing so, we seemingly overlooked
[4] As set out in
[5-9] Because the garnishment statutes are part of chaрter 25, we will view them under our general rules of statutory interpretation. The rules of statutory interpretation require an appellate court to give effect to the entire language of a statute, and to reconcile different provisions of the statutes so they are consistent, harmonious, and sensible.17 Statutory language is to be given its plain and ordinary meaning, and this court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.18 We will give effect to all parts of a statute and avoid rejecting as superfluous or meaningless any word, clause, or sentence.19 It is not within the province of a court to read a meaning into a statute that is not warranted by the legislаtive language.20
INTERPRETATION OF GARNISHMENT STATUTES
A plain reading of
ML Manager argues that
In all other instances in the garnishment statutes, the Legislature has been explicit when it requires service and notice.
[10] We have previously stated that the statutory language indicates that the purpose of
embody a remedy and mechanism for the garnishee to obtain resolution of a question concerning the garnishee‘s liability to avoid unnecessary litigation.25 Therefore, we find that a purpose of
ML Manager argues that we should interpret the garnishment statute in a manner consistent with notions of due process. In general terms, a litigant has the due process right to adequate notice or of the opportunity to be heard.26 We have stated that if a statute is constitutionally suspect, we endeavor to interpret it in a manner consistent with the Constitution.27 ML Manager argues that notions of due process would be violated if the statute does not require service.
We disagree. Although the statute does not require the garnishee to provide notice through service, the statute does provide adequate notice and an opportunity to be heard. After the garnishor serves the garnishee with the summons and interrogatories, the garnishee is required to answer within 10 days.28 On day eleven, the
[11] Therefore, we find that the garnishment statutes, whеn read as a whole, do not require the garnishee to provide notice, through service or any other means. This construction
is consistent with the meaning of the statute, the Legislature‘s intent, and the notions of due process.
Next, ML Manager argues that even if the garnishment statutes do not require notice and service, service is required by Nebraska‘s rules of civil proсedure. ML Manager directs our attention to
However,
Having established that the garnishment statutes do not require service, we find that § 6-1101 of the rules of pleading is inconsistent with the statutes that govern this matter. Section 6-1101 requires this court to apply the more specific garnishment statutes, which do not require service. This construction is consistent with the rules of civil procedure‘s purpose of securing a just, speedy, and inexpensive determination of every action.
Finally, ML Manager argues that the trial court abused its discretion in refusing to permit the filing of the objection after the 20 days had passed. ML Manager argues that the facts of this case establish excusable neglect that should entitle it to relief.
ML Manager cites Underwriters v. Cannon, 538 P.2d 210 (Okla. 1975).30 In Underwriters, the plaintiff failed to answer within 20 days and filed an “‘APPLICATION FOR EXTENSION OF TIME‘” after the
deadline had expired.31 The trial court granted the extension of time. The Oklahoma Supreme Court affirmed and stated that nothing “persuades us to depart from our position that the extension of time within which to filе pleadings in a garnishment proceeding is a matter properly within the sound judicial discretion of the trial court.”32
Without deciding whether our garnishment statutes would permit a trial court to grant an extension of time to file the objection, we find that the trial court did not abuse its discretion in denying ML Manager‘s request to excuse the late filing. ML Manager has presented no valid reason,
CONCLUSION
We hold that the garnishment statutes do not require the garnishee to serve, or give notice tо, the garnishor of the interrogatory answers. Such an interpretation is consistent with the plain meaning of the statutes, the statutes’ purpose to lessen the burden on the garnishee as an innocent third party, and the basic notions of due process. The decision of the trial court is affirmed.
AFFIRMED.
McCORMACK, J., participating on briefs.
WRIGHT, J., not participating.