Young v. Nicholson

• Decision Date: 31 July 1939
• Docket Number: No. 7235.,7235.
• Citation: 107 F.2d 177,70 App. DC 351
• Parties: YOUNG v. NICHOLSON (RIGGS NAT. BANK, Garnishee).
• Court: U.S. Court of Appeals — District of Columbia Circuit

70 App. DC 351, 107 F.2d 177 (1939)

YOUNG v. NICHOLSON (RIGGS NAT. BANK, Garnishee).

No. 7235.

United States Court of Appeals for the District of Columbia.

Decided July 31, 1939.

George F. Shea, Martin F. O'Donoghue, and Thomas X. Dunn, all of Washington, D. C., for appellant.

George E. Edelin and Milton J. Kibler, both of Washington, D. C., for appellee.

Before GRONER, Chief Justice, and EDGERTON and VINSON, Associate Justices.

VINSON, Associate Justice.

The appellant, plaintiff below and hereinafter so called, had recovered a judgment against Grace E. Nicholson, defendant below and hereinafter so called, in the amount of $5,085.73, with interest. An attachment on the judgment issued and the Riggs National Bank was served as garnishee and called upon to answer interrogatories. It duly answered that there was a balance of $42.10 belonging to defendant, and "a balance of $8,942.28 in a checking account to credit of Lorraine Mae Nicholson, a minor, subject to control of Mrs. Grace E. Nicholson, her mother, the defendant, and a balance of $95.04 in a savings account to the credit of said Lorraine Mae Nicholson subject to control of Mrs. Joseph H. Nicholson, her mother, the defendant. The extent of the defendant's interest if any in the last two mentioned accounts is unknown to the garnishee."

Upon application the district court entered an order allowing plaintiff oral examination of the garnishee. Before the oral examination was had the defendant moved to quash the writ of garnishment on the ground "that it appears upon the face of the writ and the answers to the interrogatories that the interest of the defendant is purely equitable". By agreement, the oral examination of the garnishee, together with the motion to quash the writ of garnishment, were to be heard before the same justice. At this hearing, the court did not allow the oral examination which had theretofore been ordered. Thereupon the plaintiff made a proffer of evidence which would have been adduced upon such oral examination. The court sustained the objection of defendant to this proffer of evidence and exception was duly taken. Thereupon the court quashed the writ of garnishment on the ground "that the face of the return showed that Lorraine Mae Nicholson, minor, had some manner of interest in the account at garnishee's Bank, said Lorraine Mae Nicholson being a minor and not being before the Court, her interest in said account should not be disclosed", plaintiff saving his exceptions thereto.

We are of the opinion that the district court erred in refusing the plaintiff the right to examine the garnishee orally. The right to oral examination supplementing the information obtained in the garnishee's answer is permitted in the District of Columbia in express statutory terms. Tit. 24, sec. 287, D.C.Code of 1929. The garnishee's answer on its face shows the uncertainty as to the ownership of the deposit, which is thus fairly presented to the court. The oral examination provides an additional mode of gaining information about property, money, or credits sought to be attached. In Fidelity Savings Co. v. Security Savings & Commercial Bank, 55 App.D.C. 180, 3 F.2d 351, 352, we said: "Both written and oral examinations are provided as means whereby the creditor may ascertain whether the garnishee has property or credits of the defendant in his hands, and, if so, what the facts are concerning them." We also said that "such an examination may be necessary for the information of the creditor before he is able to decide whether he should traverse the answer of the garnishee."

Neither the answer of the garnishee nor the information obtained in the oral examination is conclusive upon the court in respect of the true ownership of the fund. Sections 291 and 292, Tit. 24, D.C.Code of 1929, govern the determination in this respect. Sec. 292 permits the plaintiff to traverse the garnishee's answer, the issue thereby made to be tried before the court, or by a jury if either party so desire (sec. 291). We have heretofore held that it is unnecessary to traverse the garnishee's answer prior to the oral examination....