363 362, 219 296, Nc v. 1985 362 363 362 219 296 Nc Hybrids v. Growers Seed Association

• Decision Date: 15 February 1985
• Docket Number: No. 83-852,83-852
• Citation: 219 Neb. 296,363 N.W.2d 362
• Parties: Page 362 363 N.W.2d 362 219 Neb. 296 NC+ HYBRIDS, a Nebraska Corporation, Appellant, v. GROWERS SEED ASSOCIATION, a Texas Corporation, Appellee. Supreme Court of Nebraska
• Court: Nebraska Supreme Court

Page 362

363 N.W.2d 362

219 Neb. 296

NC+ HYBRIDS, a Nebraska Corporation, Appellant v GROWERS SEED ASSOCIATION, a Texas Corporation, Appellee.

No. 83-852.

Supreme Court of Nebraska.

Feb. 15, 1985.

Syllabus by the Court

1. Garnishment. Garnishment is a legal, not equitable, remedy unknown at common law and is a purely statutory remedy. Being in derogation of common law, garnishment statutes are strictly construed and demand compliance with all prerequisites before any remedy is available under such statutes.

2. Garnishment. Through garnishment in aid of execution a garnishee becomes a "stakeholder" or custodian holding a fund, credit, or property belonging to one or the other of the parties to a lawsuit producing the judgment for which execution is sought.

3. Garnishment. Garnishment in aid of execution is an incident to a judgment or an ancillary procedure whereby a judgment creditor seeks to collect a judgment by reaching a judgment debtor's property in the hands of a third party.

4. Garnishment. If a garnisher is dissatisfied with a garnishee's answer but does not controvert or traverse the answer given, the garnishee's answer is the only filed pleading containing allegations or statements about property, funds, or credits of a judgment debtor, a solitary pleading which is taken as true and conclusive.

Terry R. Wittler of Cline, Williams, Wright, Johnson & Oldfather, Lincoln, for appellant.

J. Scott Paul of Boland, Mullin & Walsh, Omaha, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and GRANT, JJ.

SHANAHAN, Justice.

NC + , a corporation, appeals the judgment of the district court for Lancaster County releasing and discharging Steven Bruce Booker, on behalf of certain Underwriters at Lloyd's, London, a garnishee, on account of NC + 's failure to file an application for determination of liability as provided in Neb.Rev.Stat. § 25-1030 (Cum.Supp.1984). We affirm.

On November 3, 1981, NC + obtained a judgment for $86,638.88 against Growers Seed Association for damages resulting from a breach of warranty in a sale of contaminated hybrid sorghum seed purchased by NC +. A summons in garnishment was served on Booker on May 17, 1982, and on June 8 Booker filed his "Answers to Garnishment Interrogatories and Response to Summons in Garnishment."

In his answers to NC + 's interrogatories, Booker admitted existence of insurance policies in the form of a "Seedsmen's Errors and Omissions, Claims Made Indemnity policy." A copy of the policy was attached to Booker's answers. One of the interrogatories and the answer by Booker were as follows:

Did any of the policies referred to in your answer [to the interrogatories] ... provide coverage for this incident? ...

ANSWER: Yes.

In further response to the Summons in Garnishment and the Interrogatories of NC + Hybrids, the Garnishee shows to the Court that there is no debt owing or other obligation owed by the Garnishee to the judgment debtor nor is it in possession of any property of the judgment debtor; that all obligations arising by virtue of a certain Seedsmen's Errors and Omissions, Claims Made Indemnity policy [attached] ... were complied with by the execution of the Proof of Loss [attached] ... by the judgment debtor on September 15, 1981 and the issuance of the corresponding check [attached] ... to the judgment debtor on September 23, 1981.

Booker attached to his answers a photostatic copy of Booker's check dated September 23, 1981, and payable to Growers Seed in the amount of $13,380.80. The check to Growers Seed bore the endorsement:

In complete accord and satisfaction of the obligations of Underwriters' signatories to Lloyd's Certificate No. 25 R 23263 for the claim of Growers Seed Association arising out of NC + Hybrids, a Nebraska corporation v. Growers Seed Association, a Texas corporation, District Court of Lancaster County, Nebraska-Docket No. 337, Page 001.

Booker's check was endorsed by Growers Seed. Booker concluded his answer to the interrogatories with the prayer: "[H]aving fully answered the Summons in Garnishment and Garnishment Interrogatories, the Garnishee prays that the garnishment proceedings ... be dismissed...."

NC + took no further action in the garnishment proceedings until August 19, 1983, approximately 1 year and 3 months after Booker's answers to interrogatories had been served and filed, when NC + filed a request for production of documents. On August 30 Booker moved for discharge as a garnishee on the basis of § 25-1030:

If the garnishee appears and answers and his or her disclosure is not satisfactory to the plaintiff, or if he or she fails to comply with the order of the court, by delivering the property and paying the money owing into court, or giving the undertaking required in section 25-1029, the plaintiff may file an application within twenty days for determination of the liability of the garnishee. The application may controvert the answer of the garnishee, or may allege facts showing the existence of indebtedness of the garnishee to the defendant or of the property and credits of the defendant in the hands of the garnishee. The answer of the garnishee, if one has been filed, and the application for determination of the liability of the garnishee shall constitute the pleadings upon which trial of the issue of the liability of the garnishee shall be had. If the plaintiff fails to file such application within twenty days, the garnishee shall be released and discharged.

NC + on September 7 requested leave to file an application for determination of Booker's liability. The district court denied NC + 's request and discharged Booker from the garnishment proceedings, ruling that NC + had failed to file its application within the time prescribed by § 25-1030. Further, the district court held that filing an application within the specific time limit of § 25-1030 was mandatory and that it had no discretion to permit filing an application outside the statutorily specified time.

As assignments of error, NC + claims that the trial court erred (1) in holding that a garnisher's failure to file an application for determination of garnishee's liability bars a challenge to legal conclusions contained in the garnishee's answers to interrogatories and (2) in abusing its discretion by refusing to allow the garnisher to file an application to determine liability outside the 20-day limit found in § 25-1030. NC + asserts:

NC + is not dissatisfied with the facts as set forth in the answers to interrogatories filed by Lloyd's. It simply disputes the legal conclusion contained in them that the settlement discharged all of Lloyd's [Booker's] responsibility to Growers and hence, NC +. NC + should not be required to file any kind of a pleading or application to have this legal question determined by the court.

Brief for Appellant at 7.

When asked to interpret a statute, the Supreme Court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense. It is our duty to discover, if possible, legislative intent from the statute itself. Adkisson v. City of Columbus, 214 Neb. 129, 333 N.W.2d 661 (1983). The Supreme Court, in construing a statute, looks to the objects to be accomplished, the evils and mischief sought to be remedied, or the purposes to be served, and places upon the statute a reasonable or liberal construction which will best effect its purpose rather than one which will defeat it. Mitchell v. Douglas County, 213 Neb. 355, 329 N.W.2d 112 (1983). Further, effect must be given, if possible, to all the several parts of a statute. No sentence, clause, or word should be rejected as meaningless or superfluous if it can be avoided. It is not within the province of this court to read meaning into a statute that is not warranted by legislative language; neither is it within the province of the court to read anything plain, direct, and unambiguous out of a statute. State ex rel. Douglas v. Herrington, 206 Neb. 516, 294 N.W.2d 330 (1980).

The first issue is whether an answering garnishee is entitled to be released and discharged from the garnishment if the garnisher does not file an application for determination of liability within the time specified in § 25-1030.

Garnishment is a legal, not equitable, remedy unknown at common law and is a purely statutory remedy. See, Christiansen v. Moore, 184 Neb. 818, 172 N.W.2d 620 (1969); Beggs v. Fite et al., 130 Tex. 46, 106 S.W.2d 1039 (1937). Being in derogation of common law, garnishment statutes are strictly construed and demand compliance with all prerequisites before any remedy is available under such statutes. Shevin v....