Overman v. Overman

• Decision Date: 25 February 1976
• Docket Number: Civ. No. 3-76-13.
• Parties: Frances Henson OVERMAN v. Ralph T. OVERMAN, Sr.
• Court: U.S. District Court — Eastern District of Tennessee

412 F. Supp. 411

Frances Henson OVERMAN v. Ralph T. OVERMAN, Sr.

Civ. No. 3-76-13.

United States District Court, E. D. Tennessee, N. D.

February 25, 1976.

Frances Henson Overman, pro se.

Gullett, Steele, Sanford, Robinson & Merritt, Nashville, Tenn., for defendant.

MEMORANDUM

ROBERT L. TAYLOR, District Judge.

This action was originally filed by plaintiff in the Chancery Court of Anderson County, Tennessee against her former husband, Ralph T. Overman, for enforcement of an alimony decree previously entered by that Court. An execution was levied upon the goods, chattels and real property of defendant, and Teachers' Insurance and Annuity Association and College Retirement and Equities Fund were summoned as garnishees pursuant to T.C.A. § 26-501 (Supp.1974).

Teachers' Insurance and Annuity Association and College Retirement and Equities Fund, both of whom are citizens of the State of New York, removed the action to this Court under 28 U.S.C. § 1441. Plaintiff, who is not represented by counsel, has not opposed the removal. The Court has examined the record, however, and is satisfied that it does not have subject matter jurisdiction. It therefore becomes the Court's duty to notice want of jurisdiction on its own motion. E. g., Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908); F.R.C.P. 12(h)(3); 28 U.S.C. § 1447(c).

It has long been settled that the term "civil action" as used in 28 U.S.C. § 1441 does not embrace proceedings that are supplementary or incidental to another action. E. g., 1A Moore's Federal Practice ¶ 0.1574.-11, at 86 and cases cited therein. The rule applicable to the present case has been stated by Professor Moore as follows:

"Where garnishment proceedings are first instituted after rendition of judgment, in aid of execution, the garnishee's right to remove depends upon whether the garnishment action is an independent suit, since for removal purposes an action must be independent, not supplementary." Id., ¶ 0.16712.-3), at 428 (1974)

Therefore, if the garnishment proceeding removed to this Court is an appendage of another suit rather than an independent action, it must be remanded to the state court.

The majority of courts have held that, under Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), the question of whether a garnishment proceeding is a supplementary or independent action must be resolved by looking to the construction that the state has placed on its garnishment statute. E. g., Toney v. Maryland Casualty Co., 29 F.Supp. 785 (W.D.Va.1939); Moore's Federal Practice, supra, at 429. Other courts have reasoned that the right of removal is a federal question that cannot be controlled by a state's characterization of its garnishment statute. E. g., Swanson v. Sharp, 224 F.Supp. 850 (D.Alaska 1963) aff'd sub nom. 353 F.2d 12 (9th Cir. 1965); Moore's Federal Practice, supra, at 430-31.

Whichever line of authority is followed, it seems clear that the Tennessee garnishment statute, T.C.A. § 26-501 et seq. (1955), must be viewed as creating a supplementary action. The garnishment statute provides in pertinent part:

§ 26-501. Summons of garnishee— The officer, in whose hands is an unsatisfied execution, may summon, in writing, any person as garnishee, to appear . . . and answer the garnishment.

§ 26-502. Property taken before garnishment — The officer having an execution shall not summon a garnishee, if he can find personal property of the debtor in his county sufficient to satisfy such execution.

An examination of these provisions leads to the conclusion that a garnishment proceeding in the State of Tennessee should not be treated as an independent "civil action" for the purposes of 28 U.S.C. § 1441. It is an ancillary proceeding because it must be based upon a valid, unsatisfied judgment and execution. The judgment in the present case was rendered by the state court and the execution was levied by state authorities. The garnishment proceeding is plaintiff's final step in seeking to satisfy the judgment against defendant. It is a supplementary proceeding rather...