Bassett v. McCarty

• Decision Date: 16 April 1940
• Docket Number: 27859.
• Parties: BASSETT v. McCARTY et ux. (HUGHES et al., Garnishee).
• Court: Washington Supreme Court

101 P.2d 575

3 Wn.2d 488

BASSETT v. McCARTY et ux. (HUGHES et al., Garnishee).

No. 27859.

Supreme Court of Washington

April 16, 1940

Department 2.

Action by Samuel B. Bassett against Roy C. McCarty and another wherein plaintiff caused writ of garnishment to be issued against M. G. Hughes, individually, and as receiver of the Lake Washington Motor Company, and another. From an order quashing the writ of garnishment, plaintiff appeals.

Affirmed.

Appeal from Superior Court, King County; J. T Ronald, Judge.

John J Kennett, of Seattle, for appellant.

Ralph B. Potts and H. Orley Solomon, both of Seattle, for respondents.

STEINERT Justice.

This is an appeal by plaintiff from an order quashing a writ of garnishment.

The facts are as follows: Appellant commenced an action in the superior court against respondents McCarty, husband and wife to recover the sum of one thousand dollars loaned to respondent husband. Thereafter, on May 29, 1939, appellant caused a writ of garnishment to be issued, directed to respondents Hughes as garnishee defendants, who, for convenience, will be referred to, at times, as garnishees.

Prior to the time of service of the writ, respondent Roy McCarty had brought an action for slander against respondent M. G. Hughes, individually and as receiver of Lake Washington Motor Company, and on May 26, 1939, had obtained therein a verdict in the sum of five hundred dollars.

On June 22, 1939, the garnishees served an answer to the writ of garnishment, alleging that at the time of the service of the writ upon them, and at all times subsequent thereto, none of the garnishees was indebted to, or had possession or control of any effects belonging to, respondents McCarty or either of them. In a subsequent paragraph of that answer, the garnishees set forth the verdict referred to above, but alleged that no judgment had been entered in that action and that a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, was then pending. This answer, however, was not filed until August 4, 1939.

In the meantime, on June 27, 1939, the pending motion in the slander action was denied, and judgment on the verdict was entered.

On July 31, 1939, respondents McCarty served and filed, in the present action, a motion to dismiss and dissolve the writ of garnishment. After a hearing, the court, on August 8, 1939, signed an order granting that motion '* * * upon the sole ground that at the time said writ was served and at the time the garnishee defendants [Hughes] made answer thereto, the defendants above named [McCarty] had a verdict against the garnishee defendants in the sum of Five Hundred Dollars ($500), arising out of an action for slander, but that no judgment had been entered thereon and for that reason there was no indebtedness owing by the garnishee defendants to the defendants that could be reached by a writ of garnishment.'

On the same day, August 8, 1939, appellant filed an affidavit allegedly controverting the answer of the garnishees.

The order granting the motion to dissolve the garnishment was filed on August 10, 1939. From that order, this appeal was taken.

Briefly, then, the situation presented by the facts above outlined is this: At the time that the writ of garnishment herein was served, respondents McCarty (defendants below, in this action, and plaintiffs in the slander action) had obtained a verdict against the garnishees, but had not yet obtained a judgment therein; thereafter, an answer to the writ of garnishment was served Before , but filed after, the entry of judgment on the verdict.

Appellant's ultimate object, upon this appeal, is to have it judicially declared that the writ of garnishment in this case operated with binding and impounding effect on the verdict rendered in the slander case, to the full extent of respondents McCartys' interest therein. To substantiate his position, appellant makes three contentions, (1) that an answer to a writ of garnishment speaks as of the date of its filing rather than as of the date of its service; (2) that, under the garnishment statutes of this state, a verdict creates an 'indebtedness' or, at least, constitutes 'personal property or effects belonging to the defendant'; and (3) that the trial court erred in dissolving the garnishment Before the controverted issue of fact between appellant and the garnishees had been tried on its merits.

Analysis of the questions presented requires a review of the appropriate garnishment statutes.

Rem.Rev.Stat. § 680, provides for the issuance of writs of garnishment 'Where the plaintiff sues for a debt and makes affidavit that such debt is just, due and unpaid, and that the garnishment applied for is not sued out to injure either the defendant or the garnishee; * * *.'

Rem.Rev.Stat. § 682, specifies that the affidavit must state.

Rem.Rev.Stat. § 683, provides that the writ shall command the garnishee to appear Before the court and '* * * answer on oath what, if anything, he is indebted to the defendant, and was when such writ was served, and what personal property or effects, if any, of the defendant he has in his possession or under his control, or had when such writ was served.'

Rem.Rev.Stat. § 685, prescribing the form of writ, uses substantially the same language.

Rem.Rev.Stat. § 688, declares that it shall not be lawful for the garnishee to pay to the defendant any debt, or to deliver to him any effects, after the service of the writ.

Rem.rev.Stat. § 690, requires that the answer of the garnishee shall be under oath, in writing, and signed by him; shall make true answers to the several matters inquired of in the writ of garnishment; shall be served upon the plaintiff or his attorney; and shall be filed with the clerk of the superior court.

Rem.Rev.Stat. § 691, provides that should it appear from the answer of the garnishee that he is not indebted to the defendant, and was not so indebted when the writ of garnishment was served upon him, and that he has not in his possession or under his control any personal property or effects of the defendant, and had not when the writ was served, the court shall enter judgment discharging the garnishee.

Rem.Rev.Stat. § 693, provides that if it appear from the answer of the garnishee, or otherwise, that the garnishee is indebted to the defendant, or was so indebted when the writ was served, judgment shall be entered in favor of the plaintiff and against the garnishee for the amount of such indebtedness. That section further provides that in case the indebtedness is not yet due the court shall enter an order requiring payment into court when the indebtedness becomes due.

In Frieze v. Powell, 79 Wash. 483, 140 P. 690, this court, after considering the various sections of the garnishment statute, pronounced its view concerning the impounding effect of a writ of garnishment. On page 495 of the opinion in 79 Wash., on page 695 of 140 P. appears this statement: 'A review of the sections of the Code governing garnishments seems to us to justify the view that the writ serves only to hold moneys or goods of the defendant in the hands of the garnishee at the date of the service of the writ, or at any time thereafter until the service of the answer of the garnishee, and to hold such moneys or goods coming into his hands at any time Before trial, but pursuant to any contract or agreement creating an obligation to pay the money or hold the goods, subsisting as an obligation at the time of service or answer or at any time between those dates.' (Italics ours)

Thus, the writ serves to hold (1) moneys or goods of the defendant in the hands of the garnishee (a) at the date of the service of the writ, or (b) at any time thereafter until the service of the answer of the garnishee; and (2) moneys or goods coming into the garnishee's hands at any time Before trial, pursuant to any contract or agreement creating an obligation to pay such money or hold such goods, provided that such contract or agreement subsisted as an obligation at the time of service of the writ or of the answer, or at any time between those dates.

The practicability, justice, and wisdom of that rule, which we now reaffirm, are discussed at some length in the Frieze case, but, beyond what is there said, the reasons for adopting and maintaining the rule are, we think, so obvious that further explication should not be necessary.

In view, however, of appellant's analysis of that case, and the conclusions which he has drawn therefrom, we call attention to two matters appearing in that opinion. We do this merely for purposes of correction and clarification. On page 495 of the opinion in 79 Wash., on page 695 of 140 P., the court erroneously stated that the trial court had held 'that the writ of garnishment served to attach only that portion of the salary of the principal defendant which accrued prior to the filing of the answer of the garnishee.' (Italics ours). Reference to that part of the opinion, on page 488 of 79 Wash., 140 P. 690, wherein the computation and finding of the trial court are set forth, reveals that the trial court did not consider the date of filing of the answer, but rather the date of its verification, which latter date, obviously, precedes the date of service of the answer. Under the rule herein announced, we of course, hold that the date of verification of the answer does not govern the limit of the garnishee's responsibility or liability.

The other matter, in the Frieze case, to which we wish to call attention, appears on pages 496 and 498 of the Washington Report, on pages 695 and 696 of 140 P., wherein the opinion states, in the one place, that the issue presented by the answer 'can only speak as of the date of the answer,' and, in the...