Summary
holding that a debt owed to a nonresident could be garnished if the court properly acquired jurisdiction over the garnishee and if the nonresident himself could have sued on the debt in the state
Summary of this case from Nagel v. WestenOpinion
No. 70-478 (Supreme Court No. 24837)
Decided November 2, 1971. Rehearing stricken November 30, 1971.
Judgment creditor (ex-wife) of Washington resident served two writs of garnishment on Denver office of defendant's employer, a national organization. Judgment entered on one writ, refused on the other. Defendant appealed; plaintiff cross-appealed.
Affirmed in Part, Reversed in Part.
1. GARNISHMENT — Jurisdiction — Garnishee — Provided — Creditor Could Sue. Under the present provision for garnishment in Colorado, a court has jurisdiction for garnishment of a debt upon obtaining jurisdiction over the garnishee, provided the garnishee could himself be sued by his creditor in Colorado.
2. Garnishee — National Organization — Properly Served — Denver Office — — Failure — Enter Judgment — Error. Where garnishee, a national organization, was doing business within the State of Colorado and service of the writ of garnishment was properly made upon it at its Denver office, the garnishee was properly brought within the jurisdiction of the court; and notwithstanding that garnishee had not paid amount of its debt into the registry of the court, trial court's failure to enter judgment in garnishment was error.
3. EXEMPTIONS — No Extraterritorial Effect — Colorado Law — Properly Applied — Washington Debtor. Exemption laws have no extraterritorial effect, and trial court did not err in applying Colorado exemption laws in garnishment proceeding where principal debtor was resident of state of Washington.
4. APPEAL AND ERROR — Mandate — Establish Finality — Judgment — Direct Attack — After Issue — Not Contemplated. The mandate provided for in C.A.R. 41 is intended to establish the finality of the judgment upon which the parties can rely and a direct attack upon the judgment after the mandate has issued is not contemplated by the appellate rules.
5. Petition for Rehearing — Time For — Rule — Not Extend — Filed Late — — Stricken. C.A.R. 26(c) has no application as an extension of time limit during which a petition for rehearing may be filed; and petition for rehearing, filed 17 days after date of judgment and two days after issuance of mandate, is therefore stricken.
Appeal from the District Court of Jefferson County, Honorable Christian Stoner, Judge.
L. B. Ullstrom, for plaintiff-appellee.
Donald P. MacDonald, for defendant-appellant.
This case was transferred from the Supreme Court pursuant to statute.
The facts in this case are not in dispute. The appellee, hereinafter referred to as the wife, has an unsatisfied judgment against the appellant-husband stemming from a divorce and property settlement action in which the husband was personally served in Colorado. The judgment was rendered against the husband in the amount of $7,346.08.
The husband worked for a number of years in Colorado for the Communication Workers of America (C.W.A.), a national organization doing business in Colorado, with its principal place of business in Washington, D.C. The husband later accepted a position with the same employer in the State of Washington. After the husband had taken residence in the State of Washington, a writ of garnishment in aid of a writ of execution was issued and was served at the Denver office of C.W.A. Answers to interrogatories were filed from C.W.A. headquarters in Washington D.C., by its secretary-treasurer on January 20, 1970, admitting it then owed the husband $879.04 in net wages. The court thereafter entered an ex parte order awarding judgment in favor of the wife for $879.04 and C.W.A. forwarded a check for that amount to the clerk of the court.
After counsel entered an appearance on behalf of the husband to examine the issue of garnishment, the January 30th court order was stayed pending a hearing on the question of the court's jurisdiction over the husband, the garnishee, and the funds. The court found it had jurisdiction over the garnishee and upheld its prior order granting judgment against the garnishee and ordered distribution of the funds in accordance with C.R.S. 1963, 77-4-1, et seq. Contrary to the husband's assertions, the court found that the exemption laws of the State of Washington were inapplicable. The husband here appeals the trial court's order and judgment.
The cross-appeal herein stems from a second writ of garnishment served at the Denver office of C.W.A. in February of 1970. Based upon answers to interrogatories made by the secretary-treasurer of C.W.A. at Washington, D.C., the court found the garnishee was indebted to the husband in the amount of $1,298.96. The court declined to grant judgment against the garnishee, however, for lack of jurisdiction although the jurisdictional facts were the same as in the previous writ except that the garnishee had not paid the wages due into the registry of the court. On cross-appeal, the wife contends that this ruling was erroneous.
In support of his position that the court did not acquire jurisdiction over a non-resident garnishee for wages earned outside the State of Colorado by a non-resident principal defendant, the husband cites Everett v. Walker, 4 Colo. App. 509, 36 P. 616 and Atchison, Topeka Santa Fe R.R. Co. v. Maggard, 6 Colo. App. 85, 39 P. 985, decided by this Court before the turn of the century. Both cases ruled that it was impossible to seize a debt owed by a non-resident garnishee to a principal defendant where the court had no jurisdiction over the situs of the debt. See Louisville N.R. Co. v. Steiner, 30 So. 741 (Ala.).
[1] Under the present provision for garnishment in Colorado, however, a court has jurisdiction for garnishment of a debt upon obtaining jurisdiction over the garnishee. R.C.P. Colo. 103(a) and (e); see Dupont De Nemours Co. v. Lednum, 82 Colo. 472, 260 P. 1017; Apollo Metals, Inc. v. Standard Mirror Co., 87 Ill. App. 2d 383, 231 N.E.2d 655; 6 Am.Jur.2d Attachment and Garnishment §§ 25-27. In Harris v. Balk, 198 U.S. 215, 25 Sup.Ct. 625, 49 L.Ed. 1023, considering a similar factual situation, the United States Supreme Court held that:
"If there be a law of the State providing for the attachment of the debt, then if the garnishee be found in that State, and process be personally served upon him therein, we think the court thereby acquires jurisdiction over him, and can garnish the debt due from him to the debtor of the plaintiff and condemn it, provided the garnishee could himself be sued by his creditor in that State."
See Restatement (Second) of Conflict of Laws § 68 (1971). There has been no contention here that the garnishee could not have been subject to suit in Colorado by the husband to recover upon its debt to him.
[2] In this case, the garnishee was doing business within the State of Colorado and service of the writ of garnishment upon it at its place of business properly brought it within the jurisdiction of the court in this garnishment proceeding. Harris v. Balk, supra; Dorr-Oliver, Inc. v. Willett Associates, 153 Conn. 588, 219 A.2d 718; Goldberg v. Southern Builders, 184 F.2d 345. We therefore hold that the garnishee was properly within the jurisdiction of the court and that the failure to enter judgment in garnishment was error.
[3] The husband further contends that the trial court erred in holding that the matter of exemption was to be determined by Colorado law and that the exemption laws of the State of Washington should be applied. We disagree. Colorado follows the general rule that exemption laws have no extraterritorial effect. Atchison, Topeka Santa Fe R.R. Co. v. Maggard, supra. See 35 C.J.S. Exemptions § 2. The trial court's application of the exemption law of Colorado is hereby affirmed.
The order awarding $879.04 to the wife is affirmed. The order denying her judgment for $1,298.96 is reversed and remanded for entry of judgment in accordance with this opinion.
ON PETITION FOR REHEARING
On November 17, 1971, that being the fifteenth day after November 2, 1971, on which date judgment was entered by this Court in this case, our mandate was issued and filed in accordance with C.A.R. 41. Prior to the filing of the mandate, no petition for rehearing or any request for extension of time within which to file petition for rehearing were filed in accordance with C.A.R. 40(a). On November 19, 1971, the appellant filed a petition for rehearing with this Court.
C.A.R. 40(a) is definite when it states in part,
"A petition for rehearing may be filed within 14 days after entry of judgment unless the time is shortened or enlarged by order. . . ."
C.A.R. 41 implements C.A.R. 40 as follows:
"The mandate of the court shall issue 15 days after the entry of the judgment unless the time is shortened or enlarged by order. . . ." (Emphasis supplied)
C.A.R. 26(c) states as follows:
"Whenever a party is required or permitted to do an act within a prescribed period after a service of a paper upon him and the paper is served by mail, 3 days shall be added to the Prescribed period. This Rule shall not apply to the notice of the entry of judgment or notice of disposition of motions which may be transmitted by mail as provided C.A.R. 4(a)."
The question is: Does C.A.R. 26(c) modify C.A.R. 40 and C.A.R. 41?
[4] It seems clear that the mandate provided for in C.A.R. 41 is intended to establish the finality of the judgment upon which the parties can rely and that a direct attack upon the judgment after the mandate has issued is not contemplated by the appellate rules.
[5] We, therefore, rule that C.A.R. 26(c) has no application as an extension of time limit set forth in C.A.R. 40(a).
IT IS ORDERED that the petition for rehearing of appellant is hereby stricken.
BY THE COURT:
Enoch, Dufford and Pierce, JJ.
Dated: November 30, 1971.
JUDGE ENOCH and JUDGE DUFFORD concur.