22 Haw. 723 | Haw. | 1915
Lead Opinion
OPINION OF THE COURT BY
This case has come to this court upon the exception of the garnishee to the denial bv the circuit court of his motion to vacate an order for execution theretofore made against him in the cause. It appears by the record that judgment for the amount claimed by the plaintiff was entered against the defendant upon his confession, and that thereupon, the garnishee having made no appearance, an order was entered that execution for the amount of the judgment issue against the estate of the garnishee “as his own proper debt.” That order the garnishee moved to vacate. The circumstances in detail will be stated in connection with the rulings to be made on the several grounds set forth in the motion.
1. It is contended that the circuit court was without jurisdiction to issue the summons against the garnishee for the reason that the petition contained no proper request for the issuance of summons as provided by the statute. So much of the section of the statute (R. L. 1915, Sec. 2801) as is pertinent to this point provides that a creditor who brings action against his debtor “in his petition for process may request the court to insert therein a direction to the officer serving the same to leave a true and attested copy thereof” with the garnishee or at his usual place of abode. The plaintiff, in his complaint, alleged that “T. Miyasaki, of Honokaa, Hawaii, is the attorney, agent, factor, trustee or debtor of the defendant, M. T. Eurtado, and, as such, has goods, effects or money in his hands belonging to the said defendant.” In the prayer the plaintiff asked “that the said T. Miyasaki, garnishee hereinbefore mentioned, be summoned to appear and answer this demand as is by law provided.” The stunmons was on the usual printed form in use by the circuit courts.
The cases of Frag v. Adams, 5 Haw. 664, and Young Hin v.
2. It is contended that no legal service of process was made on the garnishee for the reason that the copy of the summons served upon him did not bear the impress of the seal of the court or the signature of the clerk. Section 2801 provides that the plaintiff may request the court to direct the officer serving the process to leave “a true and attested” copy with the garnishee, also that the summons and direction “shall be signed and issued in the same manner as summonses are usually issued in civil actions.” Section 2354 (R. L. 1915) provides that “Every summons issued under the seal of a court of record, shall be served * * * upon the defendant, by the delivery to him of a certified copy thereof,” etc. These provisions amount to just
3. It is contended that the circuit court “was without jurisdiction to summon the said garnishee to appear in this (circuit) court and cause on the 7th day of July, 1914, as set forth in said garnishee summons.” The summons was issued on June 12, 1914, and was served, on the following day, upon the defendant and the garnishee. It directed the defendant (in the usual form conforming to R. L. Sec. 2353) “in case he shall file written answer within twenty days after service hereof, to be and appear before the said circuit court at the term thereof pending immediately after, the expiration of twenty days after service hereof; provided, however, if no term be pending at such time, then to be and appear before the said circuit court at the next succeeding term thereof, to-wit, the January 1915 term thereof, to be holden at Hilo, County of Hawaii, on Wednesday the 13th. day of January next, at ten o’clock, A. M.’.’
4. Another ground for the motion was stated to be “That the said garnishee was not paid for travelling fees and expenses for his attendance” as required by the statute. Section 2816 of the Revised Laws provides that every garnishee “shall be paid his travelling fees and expenses for his attendance before any court under the provisions of this chapter on the same scale and at the same rate as witnesses required by subpoena to attend on the trial of any civil suit in said courts.” The court below was right in ruling against this point. The payment or tender of an amount to cover the fees and expenses of the garnishee is not a necessary prerequisite to the entry of judgment against the garnishee in a proper case. The liability of the garnishee in
5. The remaining two points raised by the garnishee were well taken, and they may be considered together. They are that the order for execution ought not to be allowed to stand because the garnishee was not notified of the time set for the hearing of the cause, and that, in fact, no hearing was ever had as to his liability in the premises. The action was in assumpsit for money had and received. On July 6, 1914, the defendant filed an answer in which he admitted all the allegations contained in the plaintiff’s complaint and consented that judgment be entered against him. On July 7, the day the garnishee had been notified to appear and disclose, nothing appears' to have been done in the cause though a term of court was then pending. On September 9, the plaintiff appeared in court and asked for judgment “upon the pleadings,” and the court ordered judgment to be entered against the defendant. The case as to the garnishee was continued until September 14, at 10 A. M. On the last mentioned date counsel for the plaintiff appeared and contended that an “order should be made against the garnishee,” and judgment was thereupon authorized “against the garnishee in the amount prayed.” On the same day a judgment was duly entered against the'defendant for the sum of $419.20, and costs taxed at $48.70. No judgment was entered against the garnishee but the order in question was made “that execution issue against the estate of T. Miyasaki for the sum of $467.90, as his own proper debt, and the lawful costs.” The order purports to have been made upon the motion of the plaintiff. This is understood to have had reference to the contention of counsel orally advanced in court as above mentioned. The garnishee was given no notice that any
The exception is sustained and the case remanded to the circuit court with direction to set aside the order for execution and for further proceedings consistent herewith.
Concurrence Opinion
CONCURRING OPINION OF
I concur in the conclusion reached on the ground that there should have been a judgment against the garnishee, and that in the absence of such judgment the circuit court erred in denying the motion of the garnishee to set aside the order directing execution against him.
I am unable to adopt the rule that in case of garnishment and utter failure of the garnishee to pay any attention to the summons that the plaintiff must prove the amount of money or the value of the property whiph the garnishee holds for the principal defendant. Such has not been the practice in this jurisdiction as I understand it. The garnishee has until the hearing of the case closes — until judgment — to disclose, and if he refuses
It is proper practice to require the plaintiff to prove his debt against the defendant, in case of default, his relations with the defendant being within his own knowledge. The relations, however, between the principal defendant and the garnishee are not presumably within the knowledge of the plaintiff and he should not be required to prove what the garnishee owes the defendant or what property the defendant has, where he defaults, and I apprehend that the decision in Kerr v. Mayhew, supra, is consistent with this reasoning.