1 Conn. App. 291 | Conn. App. Ct. | 1983
The defendant Holch International, Ltd., the garnishee in a multi-broker suit over a $51,000 *292 real estate commission, appeals from a judgment of the court, Landau, J., ordering it to pay the $51,000 together with accrued interest to the plaintiff brokers, Vidal Realtors of Westport, Inc., and John F. Epina Realty, Inc., and the defendant broker, Harry Bennett Associates, Inc.
The brokers, having settled matters among themselves, filed a "Motion to Compel Garnishee to Release Garnished Funds." They alleged that the garnishee was always willing to pay the commission to those entitled to it, but that when the garnishee was presented with a release of garnishment it refused to turn over the $51,000 held by it unless it could retain the interest earned On the escrow account in which it was held. The court, after hearing all parties, held that a scire facias under General Statutes
The defendant garnishee's principal claim on appeal1 is that the court erred in ordering the garnishee to release garnished funds in the absence of a scire facias proceeding.
There is no disagreement over the underlying facts. Holch International, Ltd., (Holch) listed Stamford real estate for sale with the defendant broker Harry Bennett Associates, Inc., (Bennett). Bennett, as listing broker, entered into a cobrokerage agreement with the plaintiff Vidal Realtors of Westport, Inc., (Vidal) and John F. Epina Realty, Inc., (Epina) as prospective selling brokers. The agreement provided for a three way division of any commission earned from the sale of the Holch property.
The property was sold and the plaintiffs Vidal and Epina claimed the commission. Carriage Trade Realty, *293 Inc., (Carriage Trade), not a party to these proceedings, also claimed the commission. At the closing, Holch owed a $51,000 brokerage commission to the broker or brokers who brought about the sale.
Because of the conflicting claims to the commission, Holch refused to pay it although it was admittedly due. Vidal and Epina then brought the present suit against Bennett claiming their rights to two-thirds of the $51,000 commission. A prejudgment remedy in the amount of $35,000 was granted, garnishing Holch. Holch's counsel, by agreement with Bennett's counsel, added $16,000 representing the balance of the commission to a separate escrow account which Holch held pending the disposition of the matter.
In August, 1981, the plaintiffs, Vidal and Epina, the defendant Bennett and Carriage Trade all agreed on a division of the $51,000 commission. They sought to withdraw this suit but, upon presentation of a release of garnishment, Holch refused to turn over the $51,000 unless it could retain for itself the approximately $8,000 interest earned up to that time.
After the court's judgment of February 22, 1982, Holch refused to comply with it. The plaintiffs and the named defendant secured a contempt hearing at which, on July 28, 1982, the court, Tunick, J., ordered Holch to pay the $51,000 to the plaintiffs and the named defendant within fourteen days. This was done. Upon the garnishee's appeal, a stay was vacated as to the $51,000 and this has been divided among Vidal, Epina, Bennett and Carriage Trade according to their agreement. Holch's counsel still holds the interest earned on the fund which now totals more than $11,000.
The ancient and honorable writ of scire facias has been dying a lingering death in Connecticut for some time. The principal assailant is Edward L. Stephenson, who states in his treatise on Connecticut civil procedure: *294
"The writ of scire facias as used in garnishment in this state is an historical anachronism and it should be replaced by a simpler procedure by motion." 1 Stephenson, Conn. Civ. Proc. 74, citing Federal Rules of Civil Procedure, Rule
Public Acts 1983, No. 83-581, an act concerning postjudgment remedies, is a comprehensive treatment of the subject. It provides in 11(a): "Where a dispute exists between the judgment debtor or judgment creditor and a third person concerning an interest in personal property sought to be levied On . . . the judgment creditor . . . may, within twenty days of service of the execution, make a claim for determination of interests pursuant to this section." Section 39 of Public Acts 1983, No. 83-581, however, did not repeal General Statutes
The procedure involved in proceeding against a garnishee is a postjudgment one whether it be under a scire *295 facias proceeding or Public Acts 1983, No. 83-581, 28.2 In this case, there never was any judgment against Bennett. There was, therefore, no judgment debtor to trigger postjudgment proceedings.
The service of a garnishment establishes the court's jurisdiction over the garnishee. 1 Stephenson, Conn. Civ. Proc. 74(e). Such in personam jurisdiction does not include the subject matter of the garnishment. The plaintiff can summon the garnishee before the court to show cause why he should not pay the garnishment only by obtaining judgment and then seeking to collect the debt for which the judgment has been rendered through a writ of scire facias. Smyth v. Ripley,
"Under the statute, in an action of scire facias in consummation of an action begun by process of foreign attachment, there really can be no issue reaching the merits of the action other than the one whether or not the defendant in scire facias was indebted to the defendant in the original action at the time of service."3
Cunningham Lumber Co. v. New York, N.H. H.R. Co.,
Commendably, counsel for Holch has never claimed in the court below or in its brief or oral argument to this court that Holch was not indebted to Bennett at the time of the garnishment for the $51,000 commission *296
it held.4 Thus, concerning the principal garnished amount of $51,000, there was no issue to litigate in a scire facias proceeding. The question of interest is a mere incident to the debt. Woodruff v. Bacon,
Holch did object to its being required to pay over the accumulated interest. It had a full hearing both On this issue and on the issue of paying over the $51,000. Holch had an opportunity to be heard at a meaningful time and in a meaningful manner. Armstrong v. Manzo,
There remains only the question of Holch's claimed right to the interest. The court found that Holch was not entitled to retain the interest. *297
A garnishee's role is similar to that of a trustee in that he cannot derive personal profit from a garnished subject. Candee v. Skinner,
The general rule is summed up in Candee v. Skinner, supra, 469, wherein the court said that "unless [the garnishee] is holding in bad faith or making unreasonable delay, or acting in violation of some duty, or derives some pecuniary benefit from his position, he ought not to be accountable for interest." That court further pointed out that "unless it appears, or from the facts can be fairly presumed, that he has actually derived some advantage from the use of the money or received some interest or profit from its use by others" a garnishee does not owe interest. Id., 468.
Loewe v. Savings Bank of Danbury,
We conclude that Holch was not entitled to retain the accrued interest.
There is no error.
In this opinion the other judges concurred.