Fidelity Savings Co. v. Security Savings & Commercial Bank

• Decision Date: 05 January 1925
• Docket Number: No. 4113.,4113.
• Citation: 55 App. DC 180,3 F.2d 351
• Parties: FIDELITY SAVINGS CO. v. SECURITY SAVINGS & COMMERCIAL BANK.
• Court: U.S. Court of Appeals — District of Columbia Circuit

55 App. DC 180, 3 F.2d 351 (1925)

FIDELITY SAVINGS CO. v. SECURITY SAVINGS & COMMERCIAL BANK.

No. 4113.

Court of Appeals of District of Columbia.

Submitted December 8, 1924.

Decided January 5, 1925.

G. C. Shinn, of Washington, D. C., for plaintiff in error.

G. E. Edelin, of Washington, D. C., for defendant in error.

Before MARTIN, Chief Justice, ROBB, Associate Justice, and HATFIELD, Judge of the United States Court of Customs Appeals.

MARTIN, Chief Justice.

Review of a judgment of the municipal court of the District of Columbia. The Fidelity Savings Company, as plaintiff, sued out a writ of attachment against the debtor in the municipal court of the District, and named the Security Savings & Commercial Bank as garnishee. The interrogatories addressed to the garnishee and the answers thereto read as follows:

"(1) Were you, at the time of the service of the annexed writ of attachment, or have you been, between the time of such service and the filing of your answer to this interrogatory, indebted to the defendant? Answer: Acct. closed.

"(2) Had you, at the time of the service of the annexed writ of attachment, or have you had, between the time of such service and the filing of your answer to this interrogatory, any goods, chattels, or credits of the defendant in your possession or charge? If so, what? Answer: No."

The answer of the garnishee was subscribed and attested as follows:

"Security Savings & Commercial Bank, Washington, D. C., Samuel R. Bauslor, Cashier. Subscribed and sworn to before me this 30th day of July, 1923, Melvin M. Gusdorf, Notary Public."

Thereupon the plaintiff moved for a subpœna under section 447, D. C. Code, to require the garnishee to appear in court and be examined orally under oath touching any property or credits of the defendant in its hands. This motion was denied by the court with the following notation:

"Refused under section 447 of the D. C. Code, on the ground that section 461 applies."

The plaintiff then moved for judgment under section 467, D. C. Code, against the garnishee in the sum claimed against the debtor, upon the ground that it had failed to answer the interrogatories in the manner and form required by law. This motion was based upon the terms of the answer to the first interrogatory, and the form of the verification. The court overruled the motion, and discharged the garnishee. The plaintiff below excepted to each of these rulings, and now assigns them as errors.

We think that it was error for the lower court to deny the plaintiff's motion for an oral examination of the garnishee. The subject of interrogatories in such cases is governed by section 447, D. C. Code, which provides, first, for written interrogatories and answers, and next that, "in addition to the answers to written interrogatories required of him, the garnishee may, on motion, be required to appear in court and be examined orally under oath touching any property or credits of the defendant in his hands." The defendant in error argues that this provision, by its express terms, applies only to an examination of the garnishee "touching any property or credits of the defendant in his hands," and therefore...