Juneau Spruce Corp. v. INTERNATIONAL L. & W. UNION

• Decision Date: 19 May 1955
• Docket Number: Civ. No. 1409.
• Parties: JUNEAU SPRUCE CORPORATION, a corporation, Plaintiff, v. INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, an unincorporated association, and International Longshoremen's and Warehousemen's Union, Local 16, an unincorporated association, Defendants, and Central Pacific Bank, American Security Bank, and Bank of Hawaii, corporations, and International Longshoremen's and Warehousemen's Union, Local 142 and International Longshoremen's and Warehousemen's Union, Local 155, unincorporated associations, and ILWU Memorial Association, a non-profit corporation, and Toyomasa Oshiro, Myer C. Symonds, and Harriet Bouslog, Garnishees.
• Court: U.S. District Court — District of Hawaii

131 F. Supp. 866

JUNEAU SPRUCE CORPORATION, a corporation, Plaintiff, v. INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, an unincorporated association, and International Longshoremen's and Warehousemen's Union, Local 16, an unincorporated association, Defendants, and Central Pacific Bank, American Security Bank, and Bank of Hawaii, corporations, and International Longshoremen's and Warehousemen's Union, Local 142 and International Longshoremen's and Warehousemen's Union, Local 155, unincorporated associations, and ILWU Memorial Association, a non-profit corporation, and Toyomasa Oshiro, Myer C. Symonds, and Harriet Bouslog, Garnishees.

Civ. No. 1409.

United States District Court D. Hawaii.

May 19, 1955.

Howard K. Hoddick, Henshaw, Conroy & Hamilton, Howard K. Hoddick and Frank DeWitt Gibson, Jr., Honolulu, Hawaii, for plaintiff (judgment creditor).

Bouslog & Symonds, Myer C. Symonds, Honolulu, Hawaii, George R. Andersen, San Francisco, Cal., for defendants (judgment debtors) and garnishees I. L.W.U. Locals 142 and 155, ILWU Memorial Association, Toyomasa Oshiro, Myer C. Symonds and Harriet Bouslog.

McLAUGHLIN, Chief Judge.

The plaintiff received a judgment against the International Longshoremen's & Warehousemen's Union and International Longshoremen's & Warehousemen's Union, Local 16, in a United States District Court for Alaska. The judgment was registered in this Court pursuant to 62 Stat. 958 (1948) as amended, 68 Stat. 772 (1954), 28 U.S.C. § 1963. Juneau Spruce Corp. v. International Longshoremen's W. U., D.C. Haw., 1955, 128 F.Supp. 697. In this action plaintiff seeks to garnish funds to satisfy the judgment in accordance with Rule 69(a) of the Federal Rules of Civil Procedure, 28 U.S.C. following § 2072.¹ As it is the practice of this Court to issue garnishment after judgment as a proceeding supplementary to and in aid of judgment, Rule 69(a) was used rather than Rule 64. This usage is in accordance with the law of the Territory of Hawaii. Schram v. Carlucci, D.C. E.D.Mich., 1941, 41 F.Supp. 36; 3 Barron and Holtzoff, Federal Practice and Procedure, Rules Ed. (1950), § 1482, p. 333; 14 Cyc. of Fed.Procedure (3 Ed. 1952), § 71.36, p. 696; 3 Moore's Fed. Prac. (1938 Ed.), § 69.02, p. 3368, 1954 Supp. Sec. 69.02, p. 54.²

On March 1, 1955, this Court issued a garnishee summons different in form from that used by the courts of the Territory of Hawaii.³ Whenever in the past this Court had occasion to employ the Territorial garnishment law to aid the satisfaction of a federal judgment, the territorial form of garnishee summons was used. In practice, the objective of both the law and the summons had been recognized and honored. Not until this proceeding has the effectiveness of the territorial form of garnishee summons been put in doubt. The acts and legal arguments of a garnishee in the case before us indicated that the Territorial summons was imperfectly adjusted to the substantive territorial law. This Court, therefore, designed its own form of garnishee summons to unambiguously and completely invoke the territorial law. It is this writ of garnishment whose validity is questioned by the motion to quash. Unlike the old, the new writ orders the garnishees to hold and secure all debts owed to the judgment debtor. The new garnishee summons obviates the type of problem alluded to in Berry v. Midtown Service Corp., 2 Cir., 1939, 104 F.2d 107, 122 A. L.R. 1341.

Some of the garnishees served with this new form move to quash the writ of garnishment upon the ground that a federal court cannot issue a garnishee summons different in form from that used by the local courts of record.

4 Moore's Federal Practice — Forms (1942 Ed.), § 69.01, p. 623, states:

"The writ should follow the form used in the state in which the court is sitting, with appropriate changes."⁴

Other federal form books state essentially the same thing. This is the usual policy followed by federal district courts. However, when a United States district court feels it necessary to issue a garnishee summons different in form from that used in the state or territorial courts because of certain deficiencies in the form of the local writ of garnishment, it may do so because of the reasons stated in this opinion.

Under the conformity provisions of Rule 69(a) this Court is rigidly governed by the substantive and procedural requirements of the law of Hawaii relating to garnishment. Keesing v. Wishnefsky, D.C.S.D.N.Y., 1943, 52 F. Supp. 625; Schram v. Carlucci, supra.⁵ We are thus referred to Ch. 212, § 10301 et seq., Rev.Laws of Hawaii, 1945, to determine the rights of the judgment creditor.⁶ This does not preclude the application of the Federal Rules of Civil Procedure while employing Hawaii garnishment law. Robert W. Irwin Co. v. Sterling, D.C.W.D.Mich., 1953, 14 F.R.D. 250.

Regardless of what may have been the prior law, under Rev.Stat. 914 (1875)⁷, the Federal Rules of Civil Procedure have adopted a flexible policy as to forms used in United States district courts.

Rule 84⁸ provides for forms that can be used in a federal court which may differ from those used in state or territorial courts. The limited number actually printed were intended only for illustration. See Appendix of Forms, Introductory Statement, p. 517, 28 U.S. C.A. The forms were drawn up to serve as guides in pleading. See Notes of Advisory Committee on Rules, 28 U.S. C.A., Rule 84, p. 509. Rule 69(a) restricts Rule 84 in that any summons issued relating to garnishment after judgment must follow the procedural requirements of the law of Hawaii.

However, we must distinguish between form and procedure. Procedure is:

"* * * the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them."

Sibbach v. Wilson & Co., 1941, 312 U.S. 1, 14, 61 S.Ct. 422, 426, 85 L.Ed. 479. Form is the methodology used to express rules of practice and procedure. The Princess Sophia (Petition of Canadian Pac. Ry. Co.), D.C.W.D.Wash., 1929, 36 F.2d 591, affirmed 9 Cir., 1932, 61 F.2d 339, certiorari denied, Brace v. Canadian Pac. Ry. Co., 1933, 288 U.S. 604, 53 S.Ct. 396, 77 L.Ed. 980. Rule 84 permits this Court to issue its own form of writ of garnishment. We therefore hold the issuance of the form of the garnishee summons here attacked is a valid exercise of the Court's power under Rule 69(a) to invoke effectively the territorial garnishment statute.

Garnishees further object that the writ of garnishment issued on March 1, 1955, contains provisions contrary to the law of Hawaii. The first new feature complained of instructed the garnishees to hold and secure any debts owed to the judgment debtor. Garnishees contend that the only rights of a judgment creditor are conferred by § 10301, subd. 2 of the Revised Laws of Hawaii in that:

"* * * the creditor may, after judgment rendered in his favor, request the court to summon any garnishee to appear personally, upon a day appointed in the summons for hearing the cause as against such garnishee, and make full disclosure."

On the other hand, the only liabilities of the garnishee are said to be stated in §§ 10302 and 10308. Section 10302 provides that:

"* * * If judgment be rendered in favor of the plaintiff, and likewise in all cases in which the garnishee is summoned after judgment, the garnishee fund, or such part thereof as may be sufficient for that purpose, shall be liable to pay the same. The plaintiff on praying out execution shall be entitled to have included in such execution an order directing the officer serving the same to make demand of the garnishee for the goods and effects of the defendant secured in his hands, whose duty it will be to expose the same to be taken on execution, and also to make demand of the garnishee for the debt or wages secured in his hands, or such part thereof as may satisfy the judgment, and it shall be the duty of the garnishee to pay the same, and if the garnishee shall have in any manner disposed of such goods and effects or shall not expose and subject the same to be taken on execution, or if the garnishee shall not pay to the officer, when demanded, such debt or wages, the garnishee shall be liable to satisfy such judgment out of his own estate, as his own proper debt, if such goods or effects or debt or wages be of sufficient value or amount and, if not, then to the value of the same; * * *."

The language of § 10308 is:

"* * * If the garnishee fails to appear upon the day and hour of hearing named in the summons or writ above mentioned, or if having appeared, he refuses to disclose upon oath whether he has goods or effects of the defendant in his hands, and their nature and value, or whether a debt is due from him to the debtor and its amount, the case shall proceed to trial, and if the plaintiff recovers a judgment, execution shall issue at his request, against the estate of such contumacious garnishee for the amount of judgment as his own proper debt, and the lawful costs; * * *."

Garnishees overlook other portions of Hawaii's garnishment law. Section 10301, subd. 2 provides:

"* * * any and every element of any garnishee fund in the hands of such garnishee shall be there secured to pay the judgment already recovered and may not otherwise be disposed of by the garnishee."

Section 10301, subd. 4 states:

"* * * at any time, after service of summons, the court, upon the consent of the plaintiff or upon motion of the defendant or of the garnishee and notice to the plaintiff, may determine whether the garnishee fund is excessive in amount in comparison with the amount of the judgment that the plaintiff might obtain in the action, and, if so, what part thereof is a reasonable amount to be so secured, and may thereupon release the remainder thereof from being so secured."

If we accept garnishees' contentions, §§ 10301, subd. 2 and 10301, subd. 4 would have to be dismissed as superfluous. Sounder reason...