Rumsey v. George E. Failing Company

Decision Date29 June 1964
Docket NumberNo. 7331.,7331.
Citation333 F.2d 960
PartiesMyrl RUMSEY, Garnishee, Appellant, v. GEORGE E. FAILING COMPANY, Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

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 writing that he elects to take issue on his answer; * * *."

Failing Company duly filed its notice of election to take issue on the answer of the garnishee and within the 20-day period fixed in § 60-948, supra, served the same upon the garnishee by mailing it to the attorneys for the garnishee, in accordance with Rule 5(b), Fed.Rules Civ. Proc Section 60-948, supra, requires personal service upon the garnishee of the notice of election to take issue on the answer of the garnishee.3

G.S.Kan.1949, § 60-724, provides:

"The service of a notice shall be by copy served in any manner in which a summons may be served, * * *"

The garnishee filed a motion to dismiss the garnishment proceeding, for the reason that service of the notice of election on the attorneys for the garnishee was not personal service upon the garnishee and for that reason the answer of the garnishee became conclusive of the truth of all the facts stated therein, by reason of § 60-948, supra.

The trial court held that Rule 5(b), Fed.Rules Civ.Proc., was applicable and that the service was proper. The matter proceeded to trial, resulting in a judgment in favor of Failing Company. The garnishee has appealed.

The primary question presented is whether Rule 5(b) or the Kansas statute, § 60-724 is applicable with respect to the manner of service.

The Federal Rules of Civil Procedure have the force and effect of statute.4

Mr. Moore, in his work on Federal Practice, 2nd Ed., Vol. 7, Ch. 69, ¶ 69.04 2, states:

"Rule 69, supra, states `that any statute of the United States governs to the extent that it is applicable.\' A Federal Rule, which has statutory effect, will also govern."

Bair v. Bank of America Nat. Trust & Savings Ass'n., 9 Cir., 112 F.2d 247, c.d. 311 U.S. 684, 61 S.Ct. 61, 85 L.Ed. 441, impliedly held to the same effect.

Paragraph 69.03 1 of Mr. Moore's work on Federal Practice, 2nd Ed., Vol. 7, Ch. 69, in part reads:

"The Committee believed that the development of a series of rules on supplementary proceedings would be impractical and onerous in that such rules would have to be relatively detailed in order to meet the diverse situations in the various states. Furthermore, most states have provisions on supplementary proceedings which are fairly adequate. These supplementary proceedings are available in the enforcement of money judgments, regardless of whether under the prior practice the action would have been legal or equitable, since only one civil action is contemplated by the Rules, and Rule 69 covers the enforcement of any money judgment therein. * * *"

The Kansas statutes with respect to the service of summons and other process, pleadings subsequent to the original complaint — which here was the affidavit of garnishment — written motions, written notices, appearances,...

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  • Adamson v. Bowen
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 15 Agosto 1988
    ...a federal statute." Sibbach v. Wilson & Co., 312 U.S. 1, 13, 61 S.Ct. 422, 426, 85 L.Ed. 479 (1941). See also Rumsey v. George E. Failing Co., 333 F.2d 960, 962 (10th Cir.1964). The legislative history of Sec. 2412(b) supports this view of the EAJA waiver. Section 5 of the original EAJA, Pu......
  • Hilao v. Estate of Marcos, 95-56823
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 11 Septiembre 1996
    ...general provisions governing service of process, not specific provisions concerning enforcement of judgments: Rumsey v. George E. Failing Co., 333 F.2d 960, 962 (10th Cir.1964). See also Oklahoma Radio Associates v. Federal Deposit Insurance Corp., 969 F.2d 940, 942 (10th Cir.1992) (where O......
  • Natta v. Hogan
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 21 Marzo 1968
    ...Weisz, 5 Cir., 354 F.2d 464, 468, and Hickman v. Taylor, 329 U.S. 495, 505-506, 67 S.Ct. 385, 91 L.Ed. 451. 7 See Rumsey v. George E. Failing Co., 10 Cir., 333 F.2d 960, 962; and 2 Moore's Federal Practice, 2d Ed., 1967 Supp. ¶ 5.06, p. 40. 8 Natta v. Zletz, 7 Cir., 379 F.2d 615, 618. 9 In ......
  • Resolution Trust Corp. v. Ruggiero
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 20 Mayo 1993
    ...do we agree with the Tenth Circuit, see Oklahoma Radio Associates v. FDIC, 969 F.2d 940, 942 (10th Cir.1992); Rumsey v. George E. Failing Co., 333 F.2d 960 (10th Cir.1964); also 12 Wright & Miller, supra, § 3012 at p. 63, that the judge must apply the federal rules because they have the for......
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