Giove v. Stanko, s. 88-2191

• Decision Date: 05 October 1989
• Docket Number: 89-1551,Nos. 88-2191,s. 88-2191
• Citation: 882 F.2d 1316
• Parties: Concepcion GIOVE, Appellee, v. Rudy STANKO; Cattle King Packing Company d/b/a Cattle King, et al, Jean A. Stanko, on behalf of herself and her children, Christine Sue Stanko, Michael S. Stanko, and Cara M. Stanko, Appellants. Concepcion GIOVE, Appellee, v. Rudy STANKO, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1316

882 F.2d 1316

Concepcion GIOVE, Appellee, v. Rudy STANKO; Cattle King Packing Company d/b/a Cattle King, et al, Jean A. Stanko, on behalf of herself and her children, Christine Sue Stanko, Michael S. Stanko, and Cara

M. Stanko, Appellants.

Concepcion GIOVE, Appellee, v. Rudy STANKO, Appellant.

Nos. 88-2191, 89-1551.

United States Court of Appeals Eighth Circuit.

Submitted March 13, 1989.

Decided Aug. 17, 1989.

Rehearing Denied Oct. 5, 1989.

Rehearing En Banc Denied in No. 89-1551 Oct. 5, 1989.

Motion to Recall Mandate and Amended Petition For Rehearing

and Rehearing En Banc Denied in No. 89-1551 Nov. 15, 1989.

Howard P. Olsen, Jr., Scottsbluff, Neb., for appellants.

John S. Evangelisti, Denver, Colo., for appellee.

Before FAGG and BEAM, Circuit Judges, and DUMBAULD, ^* District Judge.

BEAM, Circuit Judge.

These cases were consolidated for purposes of appeal. Jean Stanko appeals the magistrate's ¹ holding that three certificates of deposit held jointly by Rudy Stanko and each of his three children are the property of Rudy Stanko and consequently can be garnished by Rudy Stanko's creditors. Rudy Stanko appeals the district court's ² determination that the magistrate had authority to enter judgment in this case without Rudy Stanko's consent. We affirm both the magistrate and the district court.

I. Background

Concepcion Giove obtained a default judgment against Rudy Stanko in the United States District Court for the District of Colorado. Giove then registered the judgment in the United States District Court for the District of Nebraska and initiated the garnishment action which is the subject of this appeal. Jean Stanko, on behalf of herself and her three children, intervened in the garnishment proceeding claiming that the funds in the certificates of deposit belonged to Jean and Rudy Stanko's children and therefore were not available for garnishment by Giove. The case was submitted to the magistrate with the consent of Giove and Jean Stanko. The consent of Rudy Stanko was not obtained and he did not appear in the garnishment proceeding.

The magistrate held that the three certificates of deposit contained funds belonging to Rudy Stanko and ordered that Giove's judgment be enforced against the funds represented by the certificates. Rudy Stanko then filed a petition for reconsideration of the magistrate's judgment with the district court claiming that the magistrate did not have authority to render a decision in this case without Rudy Stanko's consent. The district court denied Stanko's petition for reconsideration and Stanko's subsequent request for a new trial.

II. Discussion

Because we must initially determine whether the magistrate had authority to enter judgment in this case, we will first consider the merits of Rudy Stanko's appeal. "Upon the consent of the parties, a * * * magistrate * * * may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case." 28 U.S.C. Sec. 636(c)(1) (1982). Stanko argues that because his consent was not obtained, the magistrate had no authority to enter judgment in this case. The district court determined that Rudy Stanko "was not a party and is not a party to this garnishment proceeding, nor is he a necessary party." Giove v. Cattle King, No. CV86-L-582, slip op. at 2 (D.Neb. Jan. 5, 1989). Consequently, the court concluded that Stanko's consent was not required to vest the magistrate with the necessary authority. We agree.

At the time, Nebraska law did not require that the judgment debtor be a party to a garnishment proceeding seeking to obtain possession of the debtor's assets or even that the debtor be notified of such a garnishment action. (Neb.Rev.Stat. Sec. 25-1011 (Cum.Supp.1988) now requires the judgment creditor to send the judgment debtor a copy of the summons and order of garnishment, a notice to judgment debtor form and a request for hearing form.) Thus, we agree that Rudy Stanko was not a party to this action and, accordingly, agree that his consent was not necessary to give the magistrate jurisdiction.

Any person who claims an ownership interest in money or property sought to be garnished has the right to intervene in the garnishment action to assert the intervenor's rights, if any, in the property. Neb.Rev.Stat. Sec. 25-1030.03 (Reissue 1985). Stanko could have become a party to this case, but only by intervening. The record indicates that he had the opportunity to intervene. Notice of the garnishment was mailed to Stanko's last known addresses, as were copies of the order granting Jean Stanko's motion to intervene and copies of the writs of garnishment. ³

Having determined that all parties to this action consented, thereby giving the magistrate the authority to enter judgment, we now consider Jean Stanko's appeal of the merits of the magistrate's judgment. Jean Stanko claims that the magistrate erred in concluding that the funds in the certificates of deposit belonged to Rudy Stanko and were available for garnishment by Giove. The garnishment action involves three certificates of deposit which are titled as follows: "Cara M. Stanko or Rudy G. Stanko or Jean Ann Stanko WROS," "Christine Sue Stanko or Rudy G. Stanko or Jean Ann Stanko WROS" and "Michael Scott Stanko or Rudy G. Stanko or Jean Ann Stanko WROS."

"A joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sums on deposit, unless there is clear and convincing evidence of a different intent." Neb.Rev.Stat. Sec. 30-2703(a) (Reissue 1985). A joint tenant's net contribution is "the sum of all deposits * * * made by or for him, less all withdrawals made by or for him which have not been paid to or applied to the use of any other party, plus a pro rata share of any interest or dividends included in the current balance." Neb.Rev.Stat. Sec. 30-2701(6) (Reissue 1985). To determine the net contributions of the children and also of Rudy Stanko, the magistrate traced the funds in the certificates of deposit. The magistrate found that the funds initially were from deposits made by Rudy and Jean Stanko into savings accounts held under the names of the three children. In October of 1982 the funds from the savings accounts were used to purchase three money market certificates. These certificates were later redeemed and the funds placed in three interest-bearing money market checking accounts...