TO CONSOLIDATE AND AMEND THE LAW RELATING TO THE GARNISHEE PROCESS TO FACILITATE THE COLLECTION OF DEBTS.

 

Be it Enacted by the King and the Legislative Assembly of the Hawaiian Islands, in the Legislature of the Kingdom assembled:

 

Section 1.    Whenever the goods or effects of a debtor are concealed in the hands of his attorney, agent, factor or trustee, so that they cannot be found to be attached or levied upon, or when debts are due from any person to a debtor, any creditor may bring his action against such debtor, and in his petition for process may request the court to insert therein a direction to the officer serving the same, to leave a true and attested copy thereof with such attorney, agent, factor or trustee, or at the place of his or their usual place of abode, and to summon such attorney, agent, factor or trustee to appear personally upon the day or term mentioned and appointed  in said process for hearing the said cause, and then and there on oath to disclose whether he has, or at the time said copy was served, had any of the goods or effects of the defendant in his hands, and if so, the nature, amount and value of the same, or is indebted to him, and the nature and amount of such debt; which summons and direction shall be signed  and issued in the same manner as summonses are usually issued in civil actions, and shall be served by the officer according to such direction, and from the time of leaving such copy all the goods and effects in the hands of such attorney, agent, factor or trustee, and every debt due from such debtor to the defendant, shall be secured in his hand to pay such judgment as the plaintiff shall recover, and may not be otherwise disposed of by such attorney, agent, factor or trustee, and such notice shall be sufficient notice to the defendant to enable the plaintiff to bring his action to trial, unless the defendant be an inhabitant of this Kingdom, or has sometime resided herein, and then a like copy shall be served personally upon him, or left at his last and usual place of abode.

 

Section 2.    Such attorney, agent, factor or trustee upon his desire, shall be admitted to defend his principal in such suit, and if judgment be rendered in favor of the plaintiff, all the goods and effects in the hands of such attorney, agent, factor or trustee, and the debt due from such debtor or such part thereof as may be sufficient for that purpose, shall be liable to pay the same, and the plaintiff on praying out execution may direct the officer serving the same to make demand of such attorney, agent, factor or trustee of the goods and effects of the defendant in his hands, whose duty it will be to expose the same to be taken on the execution, and also to make demand of such debtor for any debt or such part thereof as may satisfy said judgment as may be due to the defendant, and it shall be the duty of the said debtor to pay the same, and if such attorney, agent, factor or trustee, shall have in any manner disposed of the goods and effects of his principal which were in his hands when the copy of the writ was left with him, and shall not expose and subject them to be taken on execution, or if such debtor shall not pay to the officer, when demanded, the debt due to the defendant at the time the copy of the writ was left with him, such attorney, agent, factor, trustee or debtor shall be liable to satisfy such judgment out of his own estate, as his proper debt, if the goods or effects or debts be of sufficient value or amount, if not, then to the value of such goods or effects or to the amount of such debt.

 

Section 3.    If the said attorney, agent, factor, or trustee or debtor fail to appear upon the day and hour of hearing named in the summons or writ above mentioned, or if, having appeared, he refuse 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 recover a judgment, execution shall issue at his request, against the estate of such contumacious attorney, agent, factor, trustee or debtor, for the amount of such judgment as his own proper debt, and the lawful costs; provided that if it appear on the trial that the goods and effects are of less value and the debt of less amount than the judgment recovered against the debtor, judgment shall be rendered against garnishee’s to the value of the goods or the amount of the debt, and if it appears that the garnishee has no goods or effects of such debtor in his hands, or is not indebted to him, then he shall recover his lawful costs.  But if he appear and on oath disclose fully whether he has in his hands the goods or effects of, or is indebted to the defendant, and it appears to the court that he has no such goods or effects or is not so indebted, then judgment shall be given for him, and he shall recover his lawful costs.

 

Section 4.    It shall be lawful for any creditor who has obtained a judgment in any court, to apply to the court or a judge thereof for a rule, order or summons, that the judgment debtor shall be orally examined before a judge of such court, or such other person as such court or judge, if of a court of record, shall appoint as to any and what debts are owing to him, and the court or judge may make such rule or order for the examination of such judgment debtor, and for the production of any books or documents, and the examination shall be conducted in the same manner as in the case of oral examination of witnesses under the Act in that case made and provided.

 

Section 5.    It shall be lawful for a judge of any court upon the ex parte application of such judgment creditor either before or after such oral examination and upon affidavit by the judgment creditor or his attorney stating that judgment has been recovered and that it is still unsatisfied, and to what amount, and that any other person is indebted to the judgment debtor, and is within the jurisdiction, to order that all debts owing or accruing from such third person (hereinafter called the “garnishee”) to the judgment debtor, shall be attached to answer the judgment debt, and by the same or any subsequent order it may be ordered that the garnishee shall appear before the judge to show cause why he should not pay the judgment creditor the debt due from him to the judgment debtor or so much thereof as may be sufficient to satisfy the judgment debt.  Provided that the judge may in his discretion, refuse to interfere when from the smallness of the amount to be recovered, or of the debt sought to be attached or otherwise, the remedy sought would be worthless or vexatious.

 

Section 6.    Service of an order that debts due or accruing to the judgment debtor shall be attached, or notice thereof to the garnishee in such manner as the judge shall direct, shall bind such debts in his hands.

 

Section 7.    If the garnishee does not forthwith pay into court the amount due from him to the judgment debtor, or an amount equal t the judgment debt, and does not dispute the debt due or claimed to be due from him to the judgment debtor, or if he does not appear upon summons, then the judge may order execution to issue, and it may be sued forth accordingly without any previous writ or process to levy the amount due from such garnishee towards satisfaction of the judgment debt.

 

Section 8.  If the garnishee disputes his liability the judge, instead of making an order that execution shall issue, may order that the judgment creditor shall be at liberty to proceed against the garnishee by writ calling upon him to show cause why there should not be execution against him for the alleged debt or for the amount due to the judgment debtor, if less than the judgment debt and for costs of suit, and the proceedings upon such suit shall be the same as nearly as may be as upon a writ of revivor.  Whenever it is suggested by the garnishee that the debt sought to be attached belong to some third person who has a lien or charge upon it, the judge may order such third person to appear before him and state the nature and particulars of his claim upon such debt, and after hearing the allegations of such third person not appearing before him upon such summons, the judge may order execution to issue to levy the amount due from such garnishee, or the judgment creditor to proceed against the garnishee as herein provided, and he may bar the claim of such third person or make such other order as he shall think fit, upon such terms in all cases with respect to the lien or charge (if any) of such third person and to costs as he shall think just and reasonable.

 

Section 9.  The taking of any goods or effects of any debtor, or the payment of any debt due him as aforesaid, or payment made by, or execution levied upon the garnishee upon any such proceeding as aforesaid, shall be a valid discharge to him as against the judgment debtor to the amount paid or levied, although such proceeding may be set aside or the judgment may be reversed.

 

Section 10.  Every such attorney, agent, factor or trustee shall be paid his traveling fees and expenses for his attendance before any court under the provisions of this Act, on the same scale and at the same rate as witnesses required by subpoena to attend on the trial of any civil suit in said courts.

 

Section 11.  Whensoever any person summoned as an attorney, agent, factor or debtor of any defendant may be desirous of so doing, he may apply to the magistrate or any justice of the court from whom or which the said summons may have issued, and the magistrate or justice having caused reasonable notice to be given to the plaintiff in the action, shall proceed to take the deposition of the person thus summoned, and make such order as may be proper in the premises, at any time previous to the day appointed for hearing the cause, and the person so summoned as agent, factor, trustee or debtor of the defendant, shall be taken to have obeyed the summons.

 

Section 12.  If upon disclosure made on oath by such debtor it appear that such garnishee is indebted to the defendant, but that such debt is not payable and become due until some future time, then such judgment as the plaintiff may recover shall constitute a lien upon such debt, until, at the time it shall fall due and payable.

 

Section 13.  The provisions of this Act and the powers conferred therein shall extend to all the common law courts of this Kingdom, according to their jurisdiction, as at present or in future organized.

 

Section 14.  The foregoing Section 11 shall be printed or written conspicuously on every summons issuing out of any court of this Kingdom which may be intended to be served on any alleged attorney, factor, trustee or debtor of a defendant in any suit.

 

Section 15.  The following laws and parts of laws shall be and the same are hereby repealed.  Sections numbered 956 to 961 of the Civil Code both inclusive, an Act approved on the 17th day of June, A.D. 1862, entitled “An Act to amend Article XLII of the Civil Code of the garnishee process to facilitate the collection of debts,” an Act approved on the 3d day of January, A.D. 1865, entitled “An Act to amend Section 956 of the Civil Code.”

           

Approved this 19th day of September, A.D. 1876.

 

 

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