Snyder v. Cox

• Decision Date: 15 December 1969
• Docket Number: No. 39--40266--I,39--40266--I
• Court: Washington Court of Appeals
• Parties: Howard A. SNYDER, Respondent, Cross-Appellant, v. James E. COX et ux, Defendants, and National Union Fire Insurance Company, a corporation, Appellant.

Page 457

1 Wn.App. 457

462 P.2d 573

Howard A. SNYDER, Respondent, Cross-Appellant, v. James E. COX et ux, Defendants, and National Union Fire Insurance Company, a corporation, Appellant.

No. 39--40266--I.

Court of Appeals of Washington, Division 1, Panel Two.

Dec. 15, 1969.

Rehearing Denied Jan. 29, 1970.

Review Denied March 13, 1970.

McMullen, Brooke, Knapp & Grenier, Robert J. Grenier, Seattle, for appellant.

McCrea, Kafer, Gissberg & Wilson, Benjamin A. Luchini, Everett, for respondent.

STAFFORD, Judge.

National Union Fire Insurance Company, the garnishee, appeals from an order that dismissed a writ of garnishment without prejudice to plaintiff Howard A. Snyder's right to seek another writ. Snyder cross-appeals from the dismissal.

Snyder recovered a judgment against James E. Cox and wife for damages arising out of an automobile accident. On August 26, 1966, he secured a writ of garnishment that commanded National to answer (1) the amount it was indebted to the Coxes; (2) the effects belonging to the Coxes which it possessed or controlled; and (3) the number of shares in National owned by the Coxes.

National answered by affidavit on October 16, 1966. It asserted (1) National was not then, nor was it at the time the writ was served, indebted to the Coxes; (2) National did not then, nor did it at the time the writ was served, possess or control any personal property or effects of the Coxes; and (3) the Coxes did not then, nor did they at the time the writ was served, own shares of stock in National.

In October of 1967 Snyder noted the case for trial without having filed the controverting affidavit required by RCW 7.32.160 and RCW 7.32.250. The trial court granted National's motion to strike the setting.

On October 27, 1967, National moved to dismiss the writ with prejudice, alleging that Snyder had failed to file his controverting affidavit. Thereafter, Snyder's Attorney signed and filed an affidavit on October 31, 1967, 13 1/2 months after National had filed its answer.

Snyder again noted the case for trial and both matters were heard November 13, 1967. The trial court held that RCW 7.32.250 required Snyder's Personal signature on the controverting affidavit and concluded that the attorney's affidavit was ineffective. The writ was dismissed and National was discharged 'without prejudice to the plaintiff (Snyder) to bring another garnishment action.' Both parties have appealed.

Snyder maintains RCW 7.32.160 applies only if the garnishee's answer Specifically denies the allegations of the writ. He argues that National's answer was a mere General denial, and thus the matter was at issue, despite the absence of his controverting affidavit, because CR 8(d) requires no response to a general denial. He adds that CR 7(a) authorizes no pleadings other than a complaint, an answer and a reply to a counterclaim denominated as such. Thus, Snyder concludes he was not required to file a controverting affidavit.

The argument is without merit. RCW 7.32.270 specifically provides:

If the answer of the garnishee is controverted, * * * an issue shall be formed, * * * No pleadings shall be necessary * * * other than the affidavit of the plaintiff, the answer of the garnishee and the reply * * * controverting such answer, * * *.

(Italics ours.) State ex rel. Gamble v. Superior Court for King County, 190 Wash. 127, 66 P.2d 1135 (1937), provides similarly that a plaintiff's controverting affidavit is necessary To put the matter at issue. Finally, CR 81(a) provides for the applicability of the civil rules as follows:

Except where inconsistent with rules or Statutes applicable to Special proceedings, these rules shall govern all civil proceedings.

(Italics ours.) Title 7 of RCW denominates garnishment actions as special proceedings. The civil rules are inconsistent with the statutory provisions which govern the Manner of pleading in such actions. Thus, the civil rules do not apply to the Manner of pleading in garnishment proceedings.

Snyder does not deny his failure to sign the controverting affidavit in the manner required by RCW 7.32.250:

If the Plaintiff should not be satisfied with the answer of the garnishee He may controvert the same by affidavit in writing signed by Him, stating that He has good reason to believe and does believe that the answer of the garnishee is incorrect, stating in what particulars He believes the same is incorrect.

(Italics ours.) He contends, however, his attorney's affidavit was sufficient because CR 11 has abolished the requirement of personal verification. CR 81(a) leads us to a contrary conclusion. CR 11 is not applicable. The failure to comply with RCW 7.32.250 was fatal to Snyder's cause.

Finally, Snyder urges that National's answer was neither properly signed nor timely filed. The assignment of error is not well taken. The agreed statement of facts does not indicate that the challenge was raised at the trial level. We shall not consider the issue for the first time on appeal. Amsbury v. Cowles Publishing Co., 76 Wash.Dec.2d 900, 458 P.2d 882 (1969); Barr v. Torgeson, 76 Wash.Dec.2d 60, 455 P.2d 585 (1969).

National contends that the trial court erred by failing to dismiss the writ With prejudice as required by RCW 7.32.160:

and should the answer of the garnishee not be controverted as hereinafter provided, And within the time hereinafter provided, the court Shall enter Judgment discharging the garnishee.

(Italics ours.) An interpretation of the three italicized portions of the statute is necessary.

Unfortunately, the legislature failed to designate the 'time' within which to file a controverting affidavit. The oversight was not rectified until a 20-day time limit was established by Laws of 1969, Ex.Ses., ch. 264, section 24. Nevertheless, the oversight did not completely relieve plaintiffs of the duty to file controverting affidavits. To so hold would reduce the statute to an absurdity.

Service of a writ upon the garnishee and his answer thereto do not put a case at issue. State ex rel. Gamble v. Superior Court, Supra. At that point no issue exists by which the garnishee may force a trial to resolve the question of his liability. Thus, after the garnishee's answer is filed the plaintiff must prosecute his proceeding with reasonable diligence. Wooding v. Puget Sound Nat'l. Bank, 11 Wash. 527, 40 P. 223 (1895) held that a delay of two years between service of the writ and citing the garnishee to appear and answer was excessive. Professor Orland suggests a more specific answer in 2 Orland, Wash.Prac. section 488(3) (2d ed. 1965):

The court rules limiting the time within which answers and replies in ordinary pleading may be served and filed furnish a fair guide by which to measure the time that...