Dickey v. Kaiser Aluminum & Chemical Sales, Inc.
| Decision Date | 23 December 1960 |
| Docket Number | No. 18311.,18311. |
| Citation | 286 F.2d 137 |
| Parties | James W. DICKEY, Appellant, v. KAISER ALUMINUM & CHEMICAL SALES, INC., Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Louis A. Sabatino, Miami, Fla., for appellant.
H. N. Boureau, Shutts, Bowen, Simmons, Prevatt & Boureau, Miami, Fla., for appellee.
Before JONES and BROWN, Circuit Judges, and CARSWELL, District Judge.
Kaiser Aluminum & Chemical Sales, Inc., the appellee, herein sometimes called Kaiser, procured a judgment on May 8, 1957, for $38,502.86 against James W. Dickey, the appellant, who will be referred to as Dickey, in the United States District Court for the Northern District of Ohio. In a diversity action for malicious prosecution brought by Dickey against Kaiser a claim for $500,000 was asserted for damages to credit and for embarrassment resulting from the alleged wrongful proceedings taken by Kaiser in attempting to collect its judgment. The district court dismissed Dickey's amended complaint and he has appealed.
Much of the complaint is devoted to an attack upon the judgment entered in Ohio, it being asserted that the service obtained was improper and invalid. These questions are not before us. In the Ohio case Dickey filed motions to set aside the judgment against him and to quash the service upon him. The motions were overruled, Dickey appealed and the appeal was dismissed. Dickey v. Kaiser Aluminum & Chemical Sales, Inc., 6 Cir., 1958, 261 F.2d 836. The judgment is valid and binding. No collateral attack upon it can prevail upon the grounds set forth and there is no malice to be imputed to Kaiser because it procured the judgment. Kaiser has a legal right to attempt to collect the judgment by all lawful means.
Dickey alleges three instances of Kaiser's efforts to collect which he says are abuse of process. It is stated that Kaiser had a writ of garnishment issued and served on The First National Bank of Miami, Florida, garnisheeing the bank account of Dickey and his wife, held as an estate by the entireties and as such not subject to garnishment. The bank, Dickey alleges, held the funds in the joint account under the writ and since the garnishment the wife of Dickey has been denied the use of the funds. Whether or not a bank deposit in the names of husband and wife is an estate by the entireties and not subject to garnishment for the debts of either is a question dependent upon all of the facts and circumstances of the particular case. Winters v. Parks, Fla., 91 So.2d 649; In re Estate of Lyons, Fla., 90 So.2d 39, 64 A.L.R.2d 1. Whether or not the bank deposit was subject to garnishment could be and should have been determined in the state court garnishment proceeding. Fla.Stat.Ann. § 77.07. This was not, apparently, so determined during the period of...
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