1. A. If the garnishee answers under oath that he is not at the time of answer, and was not, at the time the garnishment was served on him, indebted to the defendant or in possession of any personal property of the defendant, and if the garnishee's answer is not controverted within twenty days after being made, the magistrate shall enter judgment discharging the garnishee.
2. B. If the garnishee fails to answer the garnishment under oath within twenty days from the date of its service on him, the magistrate may render judgment by default against the garnishee for the full amount of any judgment rendered against the defendant, together with all interest and costs.
3. C. If the garnishee answers under oath or it appears on trial of the issue that he was, at the time of answer or at the time the garnishment was served, indebted to the defendant or in possession of any personal property of the defendant, the magistrate shall render judgment for the plaintiff against the garnishee for the amount admitted or found due to the defendant or so much thereof as equals the plaintiff's judgment against the defendant. If the garnishee is indebted to the defendant for wages or salary, the magistrate shall render judgment for the plaintiff against the garnishee only for the amount of wages or salary due the defendant in excess of the amount of wages or salary exempt from garnishment under Section 35-12-7 NMSA 1978 or so much thereof as equals the plaintiff's judgment against the defendant. The magistrate shall order the garnishee to deliver any personal property to the sheriff to be held by him subject to the order of the magistrate for the satisfaction of any judgment that may be rendered against the defendant. If the garnishee fails to deliver the personal property to the sheriff, the sheriff shall notify the magistrate, and, upon motion of the plaintiff, the garnishee shall be cited for contempt. If the garnishee fails to show good cause in the contempt hearing, he shall be punished for contempt, and the magistrate may render judgment against him for the full amount of the plaintiff's judgment against the defendant, together with all interest and costs.
4. D. If the defendant is employed by the garnishee, the magistrate shall render judgment for the plaintiff against the garnishee for the unpaid balance of the plaintiff's judgment against the defendant and order the garnishee to pay to the plaintiff each pay period the defendant's wages or salary, which are not exempt from garnishment under Section 35-12-7 NMSA 1978 and which come due subsequent to the time of answer, until the judgment is satisfied, or, if the employment relationship is terminated, until the garnishee gives the plaintiff written notice that the employment relationslhip [relationship] has terminated.

History: 1953 Comp., § 36-14-4, enacted by Laws 1968, ch. 62, § 136; 1969, ch. 139, § 5.

ANNOTATIONS

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Repeals. — Laws 1968, ch. 62, § 171, repealed former 36-14-4, 1953 Comp., relating to proceedings in district court after giving bond, effective January 1, 1969.

Cross references. — For contempt of court, see 34-1-2 to 34-1-5 NMSA 1978.

Many of the following annotations are from cases which were decided under former law.

Duty to discharge not mandatory. — Upon failure of plaintiffs to file a traverse of the answer of the garnishee within 20 days after the filing of such answer, it did not become the fixed and mandatory duty of the court, with no alternative available, to enter judgment discharging the garnishee. Farmers Ins. Exch. v. Ledesma, 214 F.2d 495 (10th Cir. 1954).

Duty to discharge discretionary. — When a motion is made to discharge the garnishee under this section, the question whether the court should enter the requested judgment of discharge or enlarge the time within which to file a traverse is one of procedure to be determined by the court in the exercise of its sound judicial discretion, and its action thereon should not be disturbed on appeal unless there is an abuse of discretion. Farmers Ins. Exch. v. Ledesma, 214 F.2d 495 (10th Cir. 1954).

Discharge may be granted. — Where a writ of garnishment is issued and served on appellee, who files an answer to the writ stating it is not indebted to the appellant, which answer does not contain a certificate of service nor a separate instrument so entitled, and appellee files its application to be discharged, this being more than 20 days after the filing of its answer, and appellant files a motion for extension of time to contravene the answer of garnishee, the trial court found that the garnishee's answer was served and was not controverted within the time provided by this section. Also, here, no formal certificate of service was filed, but since there was a letter of transmittal of the answer of garnishee to the clerk which recited that copies had been sent to appellants, and the appellants made no objection to the trial court as to the sufficiency of service, the trial court made a finding that service had been made and denied appellant's motion for an enlargement of time in which to controvert the answer, which was found on appeal not to be an abuse of discretion. Bullock v. Northern Ins. Co., 331 F.2d 431 (10th Cir. 1964).

Stop payment. — Non-bank garnishee had no legal duty to stop payment on checks that were sent to payee prior to garnishee being served with writ of garnishment. Central Sec. & Alarm Co. v. Mehler, 1998-NMCA-096, 125 N.M. 438, 963 P.2d 515, cert. denied, 125 N.M. 322, 961 P.2d 167.

Discharge denied. — Where plaintiffs had failed to traverse the answer of the garnishee within 20 days after the filing of an answer under this section, it was a matter of judicial discretion when the court entered an order denying motion to discharge the garnishee and extending until five days after entry of such order the time within which to file a traverse; and the traverse was filed within the extended period. Farmers Ins. Exch. v. Ledesma, 214 F.2d 495 (10th Cir. 1954).

Defense by garnishee as to ownership of funds. — If the garnishee's answer raises doubt about who actually owns funds admittedly held by the garnishee for another, the issues must be tried; the garnishor must establish the debtor's right to the fund, but if the garnishee raises an affirmative defense in its answer, which the garnishor controverts, the garnishee has the burden of proving that defense. Amaya v. Santistevan, 1992-NMCA-051, 114 N.M. 140, 835 P.2d 856.

Scope of duty to controvert garnishees' denial. — Where garnishees answered interrogatories by saying that debtor worked for them 12 months, that they were paying nothing for his work, that they had never paid for it and they did not owe for it, answers did not amount to a denial requiring plaintiff to prove more than the value of the services, the work, and the identity of garnishees. Zanz v. Stover, 1880-NMSC-006, 2 N.M. 29.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 6 Am. Jur. 2d Attachment and Garnishment §§ 346 to 354.

Garnishee's pleading, answering interrogatories or the like as affecting his right to assert court's lack of jurisdiction, 41 A.L.R.2d 1093.

38 C.J.S. Garnishment § 241 et seq.; 51 C.J.S. Justices of the Peace § 78(8).