Opinion
No. 77-115
Decided October 27, 1977.
From judgment for garnishor and against holder of note executed by garnishee in favor of judgment debtor, intervenor appealed.
Reversed
1. GARNISHMENT — Judgment Creditor — Not Required — Obtain — Writ of Execution — Before Issuance — Post-Judgment — Writ of Garnishment. When a debtor and his creditor have already participated in a complete hearing on the merits of the debt, as is the case with a post-judgment garnishment, there is no due process advantage to be gained by forcing the garnishor to file an additional writ, and thus a judgment creditor is not required to obtain a writ of execution before a post-judgment writ of garnishment will issue.
2. Interrogatory — Garnishee — Have Debtor's Property — Marked "No" — Further Explanation Given — Not — Denial of Liability. Where garnishee checked the box marked "no" on garnishment interrogatory form asking if he had any of debtor's property in his control, but also went on to describe disputed obligation between him and debtor arising from promissory note that was in litigation, that answer was not a denial of liability, but rather constituted an admission of potential liability under the note, and that admission was sufficient to support the writ of garnishment.
Appeal from the District Court of the City and County of Denver, Honorable Edward J. Byrne, Judge.
Rothgerber, Appel Powers, Thomas F. Quinn, for plaintiff-appellee.
Robinson Westman, Dennis P. Walker, Stephen L. Waters, for intervenor-appellant.
Intervenor, Mid-States Bank, appeals a judgment entered upon a writ of garnishment in favor of plaintiff, Warner/Elektra/Atlantic Corporation, and against garnishee, John Andrew Love. We affirm.
In October of 1975, Warner/Elektra, as an unsatisfied judgment creditor of BR Records, served a writ of garnishment on Love. The purpose of the writ was to reach a promissory note executed by Love to BR, which note had become due by the time the writ was served. Love answered that the obligation represented by the note was disputed and was being litigated in the district court.
In December of 1975, Mid-States became the assignee of BR's rights under the note, and shortly thereafter intervened in the garnishment proceedings.
Warner/Elektra and Mid-States agreed to limit the garnishment hearing to two issues: (1) Was the writ of garnishment valid even though no writ of execution preceded it? and (2) was Love's answer adequate as an admission of liability? The trial court answered each of these questions affirmatively, and entered judgment in favor of Warner/Elektra and against Love for any amount later determined to be owing under the note.
I.
Since C.R.C.P. 103(b) requires a plaintiff in attachment to obtain a writ of attachment before he may have a pre-judgment writ of garnishment, and since C.R.C.P. 103(z) gives judgment creditors the same rights, remedies, and procedures given to plaintiffs in attachment, Mid-States argues that judgment creditors are similarly required to obtain writs of execution before post-judgment writs of garnishment will issue. We disagree.
C.R.C.P. 69(a) provides that the enforcement of money judgments shall be by writs of execution, "unless the court directs otherwise." Since the writ of garnishment is itself a court order enforcing a money judgment, we hold that the issuance of a post-judgment writ of garnishment without a writ of execution is one alternative authorized by C.R.C.P. 69(a).
Furthermore, Mid-States' analogy between a pre-judgment garnishment by an attachment plaintiff and a post-judgment garnishment by a judgment creditor breaks down when viewed against the procedural due process backdrop for which Rules 102 and 103 were created. The procedure in C.R.C.P. 102 for obtaining a writ of attachment contains all the safeguards required by due process. Bernhardt v. Commodity Option Co., 187 Colo. 89, 528 P.2d 919 (1974). By making the writ of attachment a prerequisite to pre-judgment garnishment, these safeguards are made to serve double duty.
[1] But when the creditor and debtor have already participated in a complete hearing on the merits of the debt, as is the case with post-judgment garnishment, there is no due process advantage to be gained by forcing the garnishor to file an additional writ. See C.R.C.P. 102(k)(2) (1976 Supp.), under which a judgment creditor can obtain a writ of attachment without complying with all the procedural formalities of rule 102. See also Endicott-Johnson Corp. v. Encyclopedia Press, Inc., 266 U.S. 285, 45 S.Ct. 61, 69 L.Ed. 288 (1924); Brown v. Liberty Loan Corp., 539 F.2d 1355 (5th Cir. 1976), cert. denied, 430 U.S. 949, 97 S.Ct. 1588, 51 L.Ed.2d 797 (1977).
Accordingly, we hold that the writ of garnishment was not defective merely because no writ of execution preceded it.
II.
Mid-States also argues that Love's answer was a denial of liability, and that under C.R.C.P. 103(m), since Warner/Elektra failed to traverse the answer, the answer must be accepted as true and the writ dismissed. Again, we disagree.
Warner/Elektra initially argues that Mid-States, as an intervenor, has no standing to object to Warner/Elektra's failure to traverse Love's answer. We need not accept Warner/Elektra's procedural argument since we find Mid-States' substantive argument to be without merit.
[2] We do not agree with Mid-States' position that Love's answer constituted a denial of liability. Love checked the "no" box in response to the interrogatory asking if he had any of BR's property in his control, but he also went on to describe the disputed obligation under the note. Mid-States insists that by referring to the obligation as being "in dispute," Love was making it clear he denied any liability. On the contrary, we agree with the trial court that this answer constituted an admission of the existence of a potential liability under the note. Love admitted the existence of a note which was due and which on its face obligated him to BR. It is true that the amount of the obligation is contingent on the pending litigation, but just as this contingency is no bar to the writ itself, See C.R.C.P. 103(q); Union Deposit Co. v. Driscoll, 95 Colo. 140, 33 P.2d 251 (1934), neither should it change the procedural character of the garnishee's answer. The debt, once due, was garnishable; and the answer admitting the existence of the note was an admission of potential liability sufficient to support the writ.
Judgment affirmed.
CHIEF JUDGE SILVERSTEIN and JUDGE COYTE concur.