333 F.2d 960 (10th Cir. 1964), 7331, Rumsey v. George E. Failing Co.

Docket Nº:7331.
Citation:333 F.2d 960
Party Name:Myrl RUMSEY, Garnishee, Appellant, v. GEORGE E. FAILING COMPANY, Appellee.
Case Date:June 29, 1964
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 960

333 F.2d 960 (10th Cir. 1964)

Myrl RUMSEY, Garnishee, Appellant,

v.

GEORGE E. FAILING COMPANY, Appellee.

No. 7331.

United States Court of Appeals, Tenth Circuit.

June 29, 1964

Page 961

Cliff W. Ratner, Wichita, Kan. (Payne H. Ratner, Louise Mattox, Payne H. Ratner, Jr., and R.R. Barnes, Wichita, Kan., on the brief), for appellant.

Harry L. Hobson, Wichita, Kan. (Robert G. Braden, Bruce W. Zuercher and Jochems, Sargent & Blaes, Wichita, Kan., on the brief), for appellee.

Before PHILLIPS and SETH, Circuit Judges, and ARRAJ, District Judge.

PHILLIPS, Circuit Judge.

This is a proceeding in garnishment upon a federal court money judgment, brought in the United States District Court for the District of Kansas. The judgment creditor is George E. Failing Company. 1 The judgment debtor is Kan-Tex Drillers, Inc. 2 The garnishee is Myrl Rumsey.

Rule 69(a), Fed.Rules Civ.Proc., in part here material, reads:

'* * * The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held, existing at the time the remedy is sought, except that any statute of the United States governs to the extent that it is applicable. * * *'

The proceeding was commenced by Failing Company filing its affidavit of garnishment, naming Myrl Rumsey as garnishee. A garnishee summons was duly issued and served upon Rumsey. The summons required the garnishee to answer whether or not he was indebted to and whether he had in his possession or under his control any property or possessions belonging to Kan-Tex. Rumsey duly filed his sworn answer as garnishee, in which he stated that he was not indebted in any manner or under any liability to Kan-Tex, and that he did not have in his possession or under his control real estate, personal property, effects, or credits, of any description belonging to Kan-Tex, or in which it had any interest, and that he was in no manner liable as garnishee in the action.

G.S.Kan.1949, § 60-945 and § 60-948 each provide that in a garnishment proceeding the affidavit of garnishment 'shall be deemed the petition' and the garnishee's affidavit 'the answer thereto.'

G.S.Kan.1949, § 60-948, in part here material, reads:

'The answer of the garnishee shall in all cases be conclusive of the truth of the facts therein stated, unless the plaintiff shall within twenty days serve upon the garnishee a notice in...

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