Opinion
No. 4658
January 24, 1968
APPEAL FROM DISTRICT COURT OF HONOLULU HON. FRANK T. TAKAO, MAGISTRATE.
RICHARDSON, C.J., MIZUHA, MARUMOTO, ABE AND LEVINSON, JJ.
Samuel Landau for plaintiff.
Richard B.W. Ing ( Rice and Lee of counsel) for defendant.
Samuel A.B. Lyons ( Pratt, Moore, Bortz Case of counsel) for garnishee-appellee.
On October 14, 1963, City Collectors, Ltd., plaintiff-appellant, obtained a judgment in the District Court of Honolulu against Robert Maldonado, defendant. On December 23, 1965, an original garnishee summons issued by the court was served upon Lewers Cooke, Ltd., garnishee appellee, present employer of Robert Maldonado. Prior to December 23, 1965, and pursuant to Sec. 237-5 of the Revised Laws of Hawaii, 1955, Lewers Cooke, Ltd., had received 4 transfer garnishments relating to Robert Maldonado. By transfer garnishment, we refer to the garnishment of wages due to a judgment debtor from a new employer upon the filing by the judgment creditor with such new employer of a certified copy of the judgment and an affidavit showing the amount remaining due and unpaid under the judgment.
Section 237-5, RLH 1955 provides:
"Successive sequestration of wages, upon change of employment. Whenever any judgment debtor has left the employ of any garnishee, against whom an order has duly issued, before the full amount of the judgment has been paid, and has entered the employment of some other person, or of the Territory or any political subdivision thereof, then the judgment creditor may sequester any wages due the judgment debtor from such new employer by filing with such person, or the respective government auditor a certified copy of the judgment and an affidavit of the judgment creditor, showing the amount remaining due and unpaid on account of the judgment.
"Thereafter, such new garnishee shall proceed to pay the same percentage of wages as required in an original garnishment, on the balance of the judgment from week to week or month to month, until the balance due, with legal interest, is fully paid; or until such employment of the judgment debtor ceases."
Lewers Cooke, Ltd., contends, and the District Magistrate held that the transfer garnishments which were received by it before the plaintiff's original garnishee summons was served on it took precedence under Section 237-5 and 237-6, RLH 1955, over the original garnishment by City Collectors, Ltd. City Collectors contends that its garnishment, being an original garnishment, took precedence over all transfer garnishments, regardless of times of service, filing or notice to the garnishee. We agree with the contention of the garnishee, Lewers Cooke, Ltd.
Section 237-6 provides:
"The provisions of Section 237-5 shall extend to successive persons and to the Territory or any political or municipal subdivision thereof, other than the original garnishee, employing the judgment debtor, until the judgment debt has been fully discharged."
Section 237-5 was adopted to eliminate the necessity of a new court order and personal service in the event that a judgment debtor changed employers. One of the reasons was to eliminate the added cost to the judgment debtor of new orders and additional services. The mere fact that transfer garnishments under the statute may be enforceable only by a separate civil action rather than by contempt proceedings does not render it ineffectual. Nor does the fact that original garnishment orders are enforceable by contempt proceedings render such orders superior in the eyes of the Court.
We hold that the trial court did not err in holding that transfer garnishments and original garnishments have equal legal standing and that the priority of payment will be determined solely on the basis of the time of receipt by the garnishee.
The judgment is affirmed.