2012 Hawaii Revised Statutes
TITLE 36. CIVIL REMEDIES AND DEFENSES AND SPECIAL PROCEEDINGS
652-1 Garnishee process; "garnishee fund".
§652-1 Garnishee process; "garnishee fund". (a) Before judgment. When any goods or effects of a debtor are in the possession of an attorney, agent, factor, or trustee (in this chapter jointly and severally included in the term "garnishee"), or when any debt is due from any person (also included under the term "garnishee") to a debtor, or when any person has in the person's possession for safekeeping any moneys of the debtor, any creditor may bring the creditor's action against the debtor and in the creditor's petition for process, or by amendments of the complaint at any time before judgment, after meeting the requirements of section 652-1.5, may request the court to insert in the process a direction that service of a true and attested copy thereof be made upon the garnishee in any of the manners described under section 652-2.5 and to summon the garnishee to appear personally upon the day or term appointed in the process for hearing the action or at any other time appointed by the court and then and there on oath to answer all of the following inquiries, herein inclusively referred to as the "disclosure":
(1) Whether at the time the copy was served on the garnishee, the garnishee had any of the goods or effects of the defendant in the garnishee's hands and, if so, the nature, amount and value thereof;
(2) Whether at the time of service, the garnishee was indebted to the defendant and, if so, the nature and amount of the debt; or
(3) Whether at the time of service on the garnishee, the garnishee had any moneys of the defendant in the garnishee's possession for safekeeping and, if so, the amount thereof.
The summons and direction shall be signed and issued as is usual in other civil process after proceedings under section 652-1.5. The summons shall specify an amount or value of money, debt or goods or effects to be garnished which shall not exceed one hundred twenty per cent of the amount of the plaintiff's claim, including cost and interest. The summons shall be served upon the garnishee in any of the manners described under section 652-2.5. From the time of service, the garnishee shall secure in the garnishee's hands to pay such judgment as the plaintiff shall recover in the action, such of the following property or choses then in the garnishee's possession or owing to the defendant as shall equal the amount or value specified in the summons, except what the court has expressly found to be exempt from execution pursuant to section 652-1.5(d) or (f):
(1) The goods and effects of the defendant then in the hands of the garnishee;
(2) Any debt then owing from the garnishee to the defendant;
(3) Moneys of the defendant then in the possession of the garnishee for safekeeping; and
(4) A portion of the defendant's wages, salary, stipend, commissions, annuity, or net income under a trust (in this chapter included under the term "wages"), remaining after the deduction of any amounts required by law to be withheld by withholding the amount to be determined as follows: five per cent of the first $100 per month, ten per cent of the next $100 per month, and twenty per cent of all sums in excess of $200 per month, or an equivalent portion of the above amount per week, whether then or thereafter to become owing.
The property or choses described in (1), (2), (3), and (4) of this paragraph are included under the term "garnishee fund" (in this chapter). The cumulative total value of the fund, in advance of final judgment, shall be no more than the amount specified in the summons.
Except as provided in section 652-1.5, the summons and direction shall be sufficient notice to the defendant to enable the plaintiff to bring the plaintiff's action to trial, unless the defendant is an inhabitant of the State or has some time resided therein, in which case a like copy shall be served personally upon the defendant or left at the defendant's last and usual place of abode.
The court shall order the garnishee fund released at the hearing provided in section 652-1.5 or thereafter upon the filing by the debtor with the court of a bond or bonds issued by a surety or sureties licensed to do business as such in the State, in an amount sufficient to pay the claim of the creditor together with costs and interest, and conditioned upon judgment rendered in favor of the creditor and to the extent the claim or any portion thereof, together with costs and interests, if any, is awarded.
(b) After judgment. Wages may be garnisheed after judgment at the rate specified in subsection (a). In any action brought by a creditor against a debtor, the creditor may, after judgment rendered in the creditor's favor, request the court to summon any garnishee to appear personally, upon a day appointed in the summons for hearing the cause as against the garnishee, and make full disclosure; or in any action brought in the district court by a creditor against a debtor, the creditor may, ten days after judgment rendered in the creditor's favor, file a certified copy of the judgment and the creditor's affidavit as to the amount due and unpaid on account of the judgment with the employer of the judgment debtor and the employer shall thereupon either file a disclosure within one week or shall withhold from the wages of the judgment debtor the amounts as provided herein and pay the same to the judgment creditor.
Alias summons shall also be issued and served upon the garnishee in any of the manners described under section 652-2.5. At the time of service, any and every element of any garnishee fund then in the hands of the garnishee shall be there secured to pay the judgment already recovered and may not otherwise be disposed of by the garnishee.
(c) Return by garnishee. Any garnishee summoned, whether before or after judgment, may file in the court issuing the summons, on or before the return day thereof, a return under oath containing a full disclosure. A copy of the return shall be served on the plaintiff or the plaintiff's attorney on or before the return day. The filing of the return shall be deemed prima facie a compliance with the summons; provided that either party to the action may, upon written notice served upon the garnishee, require the garnishee to appear and be examined under oath as to such disclosure or as to the garnishee's liability as garnishee.
(d) Garnishee fund excessive. At any time after service of summons, the court, upon the consent of the plaintiff or upon motion of the defendant or of the garnishee and notice to the plaintiff, shall determine whether the garnishee fund is excessive in amount in comparison with subsection (a) of this section or with the judgment rendered and may thereupon release the remainder thereof from being so secured.
(e) If any party named in the process as garnishee is a corporation, firm, or person having places of business in more than one judicial circuit or district in the State, the service of process upon the garnishee upon service in any one circuit or district shall operate to secure the garnishee fund in each place of business in the State.
(f) No employer shall be liable to anyone for deductions and payments to judgment creditors from wages of judgment debtor employees, as herein provided, when the employer in good faith believes, or has reason to believe, that service of the certified copy of the judgment and affidavit of the judgment creditor as provided in (b) herein affects the same. [L 1876, c 35, §1; am L 1917, c 124, §1; am L 1919, c 157, §1; am L 1921, c 66, §1; RL 1925, §2826; am L 1925, c 262, §1; am L 1927, c 96, §1; am L 1931, c 68, §1; am L 1933, c 172, §1; RL 1935, §4270; am L 1939, c 212, §1; RL 1945, §10301; RL 1955, §237-1; am L 1959, c 65, §1; am L 1961, c 167, §§2, 3; am L 1965, c 89, §§1, 2; HRS §652-1; am L 1970, c 86, §2; am L 1975, c 155, §1(2); am L 1977, c 33, §2; am L 1978, c 247, §1; gen ch 1985; am L 1992, c 82, §2; am L 1997, c 56, §1]
Federal restrictions on garnishment, see Pub L 90-321, Title III (15 U.S.C. §1671 ff).
Law Journals and Reviews
Funds in joint bank account; presumption as to ownership of the funds by the debtor. Haw Supp, 6 HBJ 25.
Where general contractor denied being "indebted" to subcontractor in general contractor's garnishee disclosure, general contractor was indebted to subcontractor for the purposes of this section. 179 F.3d 829.
Notwithstanding Sniadach v. Family Finance Corp. (395 U.S. 337), provisions on garnishment of corporation's checking account, payroll account and payments due on completed contracts are not violative of due process. 317 F. Supp. 150.
Issuance of ex parte writs of garnishment to be served on personal checking accounts which may contain AFDC (assistance) grants held unconstitutional. 431 F. Supp. 1369.
Affidavit method of post-judgment garnishment of wages does not contravene constitutional requirements of procedural due process. 467 F. Supp. 544.
Garnishee process does not authorize attachment of money or goods but only debts owing to judgment debtor. 6 H. 623. "Effects", embraces what. 16 H. 106; 35 H. 772. "Any person" includes municipal corporation. 23 H. 564.
Service on corporation, 6 H. 259; on attorney-in-fact of garnishee, 6 H. 659; of defective copy on garnishee, 14 H. 627. "Last and usual place of abode". 20 H. 132, aff'd 233 U.S. 70. Service required by this section is due process of law. 20 H. 132, aff'd 233 U.S. 70. Defective service waived by general appearance of garnishee. 18 H. 593. See, generally, 5 H. 489; 6 H. 153; 7 H. 72; 10 H. 325; 22 H. 321; 27 H. 655; 28 H. 528. Service on garnishee is sufficient notice to non-resident defendant. 22 H. 321. Garnishee may appear and orally disclose. 15 H. 645. Substitute process. 34 H. 328. Interpleader. 33 H. 557.
Petition in writing, must contain specific request for garnishee process. 5 H. 664. Sufficiency of request for issuance of process. 22 H. 723. Examination before "judge at chambers". 22 H. 229. Before district magistrate. 19 H. 625. Both debtor and garnishee summoned on same order. 22 H. 229.
Rights accrue at time of service. 28 H. 528, 533. Annuity. 31 H. 418, 427. Assignment. 5 H. 589; 30 H. 158. As to priority of claim where garnishment and mechanic's lien are involved. 9 H. 23. Judgment concludes "trial" and discharges garnishee. 27 H. 749. Garnishee set-off. 19 H. 83. Rights between "foreign receiver" and domestic creditors. 10 H. 325; 10 H. 327. Garnishee summons does not take precedence over a garnishment of a new employer under §652-5, priority of each being determined according to time of receipt by garnishee. 50 H. 223, 437 P.2d 95.
When trustee under private trust may be held as garnishee. 11 H. 466; 32 H. 78. Trustee in bankruptcy. 33 H. 337. Assignee in bankruptcy. 5 H. 445. Debt owing partnership cannot be garnisheed in action against one of the partners. 14 H. 300; and see 6 H. 153; 6 H. 157. Money with clerk, still subject to judicial action, is not subject to garnishment. 10 H. 499. Debt subject to contingency and not due or to become due by mere lapse of time, is not subject to garnishment. 11 H. 202; 27 H. 297. Unliquidated claim for damages for breach of contract is not subject to garnishment. 20 H. 702. "Debts" do not include those controverted by garnishee. 27 H. 651. Liability under implied promise to pay reasonable attorney's fee is subject to garnishment. 47 H. 252, 386 P.2d 886. Claim for unliquidated damages for breach of contract does not constitute debt, and garnishment is not available. 308 F. Supp. 59.
Garnishee's denial of liability is not conclusive. 48 H. 68, 395 P.2d 691.
As applied to bank accounts, statute is violative of due process clause. 54 H. 656, 513 P.2d 1390.
Garnishor has a right to examine garnishee under oath when garnishee denies indebtedness. 71 H. 393, 793 P.2d 170.
Pledgor's interest in pledged stock, though subject to bank's security interest, was garnishable under this chapter. 92 H. 347, 992 P.2d 42.
Hawaii Legal Reporter Citations
Declared unconstitutional. 77 HLR 77-837.
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