Bank of Delaware v. Wilmington Housing Authority

• Decision Date: 05 February 1976
• Citation: 352 A.2d 420
• Parties: BANK OF DELAWARE, a Delaware Corporation, Garnishee of Vorheese Boyce, Plaintiff-in-Error, v. WILMINGTON HOUSING AUTHORITY, Defendant-in-Error.
• Court: Delaware Superior Court

Page 420

352 A.2d 420

BANK OF DELAWARE, a Delaware Corporation, Garnishee of Vorheese Boyce, Plaintiff-in-Error, v. WILMINGTON HOUSING AUTHORITY, Defendant-in-Error.

Superior Court of Delaware, New Castle County.

Submitted Jan. 22, 1976.

Decided Feb. 5, 1976.

On certiorari from Justice of the Peace Court No. 13.

Eduard F. von Wettberg, III, and Morris L. Stoltz, II, of Morris, James, Hitchens & Williams, Wilmington, for Bank of Delaware.

Jerome O. Herlihy, of Herlihy & Herlihy, Wilmington, for Wilmington Housing Authority.

TAYLOR, Judge.

Certiorari has been filed in this Court to review the decision of Justice of the Peace Court No. 13, denying the motion of the Bank of Delaware (Bank) to quash a writ of attachment which undertook to garnishee wages due an employee of the Bank. The writ sought to garnishee 'goods, chattels, rights, credits, money or effects' due from the Bank to the judgment debtor, Vorheese Boyce. The thrust of the controversy here is whether wages of an employee of a bank can be attached. It appears that in the area of law under discussion here, no distinction is made between execution attachment and garnishment. Therefore, those words are used without distinction in this opinion.

The Bank relies on 10 Del.C. § 3502 which, inter alia, makes all corporations 'except banks, savings institutions and loan associations, . . . subject to the operations of the attachment laws of this State, as provided in case of individuals.' It appears that absent the forerunner of this statutory provision, corporations in this state were not subject to garnishment. Holland & Co. v. Leslie & White, Del.Super., 2 Har. 306 (1837); National Bank v. Furtick, Del.Err. & App., 2 Marv. 35, 42 A. 479 (1897); 2 Woolley on Delaware Practice § 1167, p. 805. ¹

The statutory provision subjecting corporations, except banks, etc., to attachment process and garnishment was adopted in 1871 by 14 Del.Laws, Ch. 90 embodying language almost the same as 10 Del.C. § 3502.

Thus, garnishment against a corporation must be founded upon statutory authorization. As noted above, the statute has excluded banks from the general authorization. Various attempts have been made to narrow the effect of the so-called exemption in which it was contended that a particular function or relationship did not fall within the exemption. Thus, in Sterling v. Tantum, Del.Super., 5 Boyce 409, 94 A. 176 (1915), where the issue was whether a trust company upon which full banking powers had been conferred was subject to garnishment with respect to monies held in its trust or other department which was operated separately from the banking business, this Court, in an opinion concurred in by all members of the Court, held that the garnishment was not binding because it was against a bank. The susceptibility of a bank, serving as trustee, to attachment (garnishment) for delinquent income taxes was considered again by this Court (three judges sitting) in State ex rel. duPont v. Bradford, Del.Super., 7 W.W.Harr. 289, 183 A. 316 (1936). In Bradford, Judge Rodney, speaking for the Court, reviewed the applicable common law and statutes and concluded that the attachment would not lie against the bank even though the trust beneficiary might be liable, and despite the general Income Tax Law which authorized collection by attachment. The holding of Bradford was that the exclusion of banks from garnishment is dependent upon the garnishee being a bank and that the exclusion is not based upon the nature of the claim. The Court distinguished between 'the personality of the garnishee and its liability to answer as such, on the one hand, and the property or subject of the garnishment, on the other' and held that the exemption is based upon the former without regard to the latter.

Faced with the decisions of this Court in Sterling and Bradford that garnishment will not lie against a bank, ...