Lomax v. Spriggs

• Decision Date: 30 July 1979
• Docket Number: No. 13419.,13419.
• Citation: 404 A.2d 943
• Parties: Margaret L. LOMAX (Kenner), Appellant, v. Virgil Paul SPRIGGS, Appellee.
• Court: D.C. Court of Appeals

Page 943

404 A.2d 943

Margaret L. LOMAX (Kenner), Appellant, v. Virgil Paul SPRIGGS, Appellee.

No. 13419.

District of Columbia Court of Appeals.

Submitted September 28, 1978.

Decided July 30, 1979.

Rehearing Denied October 16, 1979.

John J. Simard, Washington, D. C., for appellant.

Philip H. Manning, Columbia, Md., for appellee.

Before KELLY, NEBEKER and HARRIS, Associate Judges.

NEBEKER, Associate Judge:

The plaintiff appeals from an order quashing a writ of attachment. We reverse in part and remand.

On January 5, 1965, the District of Columbia Juvenile Court ordered the appellee to pay the appellant $7.00 per week for child support. The appellant received some payment, but was prohibited from garnishing the appellee's wages for any deficiency because the appellee was an employee of the United States. In 1975, however, Congress allowed the garnishment of the wages of employees of the United States, where the garnishment is to enforce "legal obligations to provide child support or make alimony payments." Social Services Amendments Act of 1974, Pub.L.No.93-647, § 459, 88 Stat. 2337 (effective July 1, 1975). On January 26, 1978, the appellant filed for a writ of attachment, which was served on the appellee's employer, the United States Court of Appeals for the District of Columbia Circuit. On motion of the appellee and following a hearing, the Superior Court suspended the writ on April 7, 1978, "without prejudice . . . to the filing of a further Writ in an amount not barred by Section 15-305 of the D.C.Code and/or a Motion for the Revival of Judgment." A defense of laches, an alternative ground urged for quashing the writ, was not ruled upon.

To summarize the conclusions which will follow, we hold that the writ involved is not a "writ of execution" governed by the three-year period of D.C.Code 1973, § 15-302, and the revival provision of § 15-305, but is a "writ of attachment" governed, inter alia, by D.C.Code 1973, § 16-543. Section 16-543 provides that a writ of attachment may be issued in aid of execution during the life of a judgment. We hold that each support payment became a separate judgment as of the date the payment fell due and that the life of each judgment is the twelve-year period specified in D.C. Code 1973, § 15-101, irrespective of whether the judgments are or are not recorded. As to the life of the judgment, § 15-101 specifies that a judgment is in force for twelve years from when "execution might first be issued thereon." We conclude that this period is unaffected by a judgment debtor's wages being immune from garnishment, and therefore the effect of the Social Services Amendments Act of 1974 is irrelevant to the application of §§ 15-101 and — 302. Finally, we hold that the Superior Court judge should have reduced the amount of the writ by the sum improperly stated rather than suspend the entire writ. Accordingly, we reverse in part and remand. We express no opinion on the defense of laches, it not having been ruled on at the trial level.

I. WRIT OF ATTACHMENT DISTINGUISHED FROM WRIT OF EXECUTION

A. Functions of the Writ

The writ here in question is a writ of attachment. However, it was upon the basis of D.C.Code 1973, §§ 15-302, — 305, that the Superior Court judge suspended the writ. Section 15-302 states in pertinent part:

(a) A writ of execution on a judgment in a civil action may be issued within three years after:

* * * * * *

(2) it first might have been issued under applicable provisions of law or rules of court.

Section 15-305 states:

A writ of execution not issued within the time allowed therefor, may not be issued until the judgment has been revived. The same rule applies to the order of revival in relation to the issuance of a writ of execution as to the original judgment.

The writ in question is titled "writ of attachment" rather than "writ of execution," to which both of the above sections refer. The writ does not purport to disburse the wages to the judgment creditor, but requires the garnishee to pay certain wages to the Clerk of the Family Division of the Superior Court. It, therefore, maintains the status quo pending a decision by the court as to whether to disburse the funds into the hands of the awaiting judgment creditor.¹ Accordingly, the writ in issue is not a "writ of execution," governed by §§ 15-302 and -305, but a writ of attachment, governed, inter alia, by D.C.Code 1973, § 16-543, which provides:

Attachment may be issued at any time during the life of the judgment, without issuing an order reviving the judgment previously thereto.

Therefore, the three-year period relating to the issuance of a writ of execution is irrelevant to the issue of whether the writ of attachment properly issued.²

While the above paragraph alludes to the distinction between a writ of execution and a writ of attachment, an appreciation of the origins of the two writs is essential to a firm understanding for the basis of our ruling. The sections quoted above date back to the first code adopted by the Congress for the District in 1901. See D.C. Code 1901, §§ 1074, 1078, 1087 (31 Stat. 1358-59). As the Code has been updated, the essence of the sections has been preserved, although the wording and positioning within the Code have been somewhat altered.³ A view of the law as it appeared to the courts and writers of the time provides the key to our understanding now.

At early common law, apart from the "original writ" as a means of compelling the appearance of the defendant,⁴ various judicial processes were employed. One such process was the writ of attachment, then called a writ of pone per vadium.⁵ By this writ the sheriff was commanded to secure the appearance of the defendant by two alternative means. He could seize the defendant's goods (gage), which would be forfeited upon non-appearance, or require the defendant to find sureties (safe pledges), who would be fined upon the defendant's failure to present himself as directed.⁶ Obedience to the court dissolved the writ; the writ did not secure any debt resulting from a judgment.⁷

From this beginning, the writ of attachment evolved to a point where its main purpose is to secure the debt or anticipated debt.⁸ Under the forerunner of the 1901 District of Columbia Code, plaintiffs in the District's courts were allowed the option of attaching the defendant's credits or goods following judgment, rather than immediately executing on the judgment.⁹ Whereas a writ of execution following a default judgment and a pre-judgment writ of attachment required an undertaking,¹⁰ a postjudgment writ of attachment required no security.¹¹ Because a writ of attachment ordered the marshal to notify the defendant of the attachment of his property and of the defendant's duty to appear in court and show why the property "should not be condemned, and execution thereof had been made,"¹² an additional opportunity was afforded the defendant to demonstrate that any execution would be a mistake.¹³ Under the current code, property is attached to provide assurance that the judgment will be satisfied. The attachment guarantees the judgment creditor security while significantly reducing the potentiality for liability due to wrongful execution.

In contrast to a writ of attachment, which freezes or seizes property to maintain the status quo, a writ of execution is the means by which a judgment is satisfied. By execution, a judgment debt is discharged. The parties are placed in the position mandated by the judgment. As explained by a scholar who published contemporaneously with the original enactment of the code provisions presently in dispute:

Upon judgment, the successful party is, generally, entitled to execution, to put in force the sentence that the law has given. For this purpose he sues out a writ, addressed to the sheriff, commanding him, according to the nature of the case, either to give the plaintiff possession of the lands, or to enforce the delivery of the chattel which was the subject of the action, or to levy for the plaintiff the debt or damages and costs recovered, [and] in some cases, upon his body, lands, and goods. . . .[¹⁴]

While D.C.Code 1973, § 15-302 is written in terms of "[a] writ of execution," there were at common law, and are today, several writs of execution.¹⁵ While particular writs may have been modified in form and purpose,¹⁶ the purpose of the writs, to place the parties in the relative positions mandated by the judgment, has endured the modifications. A writ of execution is to discharge the judgment.

Through the morass of the Latin phrases and the obtuseness of the antiquated sentence structure, the point to be gleaned is the difference between a writ of attachment, by which assets are frozen, and a writ of execution, by which assets are transferred from the judgment debtor to the judgment creditor. As the functions of the writs are different, so are there differences in the time limitation, relative to the judgment, governing their issuance.

B. Time for Issuing Each Writ

A writ of attachment may be issued before judgment or at any time while the judgment is in force.¹⁷ Thus, a person having a claim, whether or not reduced to a judgment, may reasonably assure himself of satisfaction by "freezing" property. For example, a writ of attachment may be obtained under D.C.Code 1973, § 16-501(d)(3), where a defendant "is about to remove . . . his property from the District." The same principle holds true following a judgment: so long as the judgment is in force, a writ of attachment may issue on it. The delay required to revive a judgment so that a writ of execution may issue,¹⁸ may be of sufficient length to allow the defendant ample opportunity to secrete or dispose of his assets. See, e. g., Harper v. Cunningham, 8 App.D.C. 430 (1896) (second reported appeal in proceeding begun in 1890 to revive a judgment). Therefore, essentially no limit is fixed on the time for attachment in anticipation of satisfying a viable claim.

The...