Beery v. Browning

717 P.2d 365, 1986 Alas. LEXIS 315
CourtAlaska Supreme Court
DecidedApril 18, 1986
DocketNo. S-531
StatusPublished
Cited by3 cases

This text of 717 P.2d 365 (Beery v. Browning) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beery v. Browning, 717 P.2d 365, 1986 Alas. LEXIS 315 (Ala. 1986).

Opinion

OPINION

BURKE, Justice.

I. INTRODUCTION

A judgment creditor, Barbara Beery, appeals the summary judgment dismissing her attempted garnishment of debtor Kermit Browning’s accounts held by garnishee First National Bank of Anchorage. At issue on appeal is whether Beery complied with the notice requirements of Alaska Civ[366]*366il Rule 89(f)(3).1 . That rule requires a gar-nishor to serve upon the garnishee a notice specifying the property garnished. Since the garnishee here lacked such notice, we affirm the dismissal of the attempted garnishment.

II. FACTUAL AND PROCEDURAL BACKGROUND

On November 3, 1983, judgment creditor Barbara Beery obtained a Writ of Execution (“Writ”) from the Clerk of Court, Juneau, in the amount of $6,385.06. On Beery’s instructions, the Clerk turned over the signed and sealed Writ directly to Ted Price, an authorized process server.

Mr. Price personally served both the Writ and a Creditor’s Affidavit (“Affidavit”) specifying the property to be seized on Emma Houston, an authorized agent of the Juneau branch of the First National Bank of Anchorage (“Bank”).2 Mr. Price asked Mrs. Houston to notify the Haines branch, where debtor Browning had his accounts, to withhold and forward funds to the Clerk of Court. Later, Mrs. Houston called the process server and told him to take back the Writ. She said that the Juneau branch refused to accept service for the Haines branch. The Bank asserted that Mr. Price had to personally serve the branch actually holding the assets.

Mr. Price retrieved the Writ from the Juneau branch and express mailed both the Writ and the Affidavit, return receipt requested, to the Bank’s Haines branch. The Haines branch received the Writ on November 7. On November 8, Gretchen Hundert-mark, Secretary to Beery’s attorney, called the Haines branch and talked to an employee who acknowledged receipt of the Writ. The Bank employee also stated that approximately $900 was withheld from the debtor’s accounts and that another employee was “processing” the papers.

Several days later, Beery’s attorney learned that the Bank had transmitted no funds to the Clerk of Court. On November 10, the Haines branch returned the Writ and Affidavit to the Juneau Clerk’s office with a note refusing any service not personally served by a process server or a state trooper. The note also asserted that the “papers are not addressed to this bank.”3 The Bank sent a copy of this note to Beery’s attorney.4

Beery filed a Motion for Order to Show Cause under Civil Rule 89(1). The Motion asked that an agent of the Bank’s Haines branch explain why the Bank should not be held in contempt for its failure to deliver to the court funds in its possession belonging to the judgment debt- or.5 The Bank opposed Beery’s motion and moved for summary judgment. It argued that both attempts at service were ineffective and thus the Haines branch was not in contempt for its failure to pay over cash in the accounts. The Bank attacked both the manner of the service and the content of the notice provisions. The superior court heard arguments on the summary judgment motion and entered a brief order dismissing the garnishee proceeding. The court stated no reasons in its order. This appeal followed and we affirm.

III. CONTENT OF GARNISHMENT NOTICE

On appeal, the parties dispute the propriety of both the manner of service 6 and the [367]*367content of the garnishment notice.7 Because we hold that Beery served no Rule 89 notice, and that no circumstances justify an estoppel, we need not reach the other issues.

To execute her judgment against Browning, Beery needed to comply with AS 09.35.110. That section describes the procedure for execution of a judgment. It provides that “[a]ll property shall be levied upon ... in the manner that similar property is attached_” Alaska Statutes Title 9, Section 40 and Civil Rule 89 govern attachment.8

Civil Rule 89(f)(3) provides that: personal property [in the possession of a third party or not capable of manual delivery] shall be attached by leaving a certified copy of the writ, and a notice specifying the property attached, with the person having possession of same, or if it be a debt, then with the debtor.

(Emphasis added). Civil Rule 89(f)(3) is the only rule or statute that defines the notice the garnishee must receive. Other applicable provisions also mention “notice” as a separate entity from the writ, but do not describe the required “notice.” For example, AS 09.40.040, applicable to both writs of attachment and execution, provides:

All persons having in their possession personal property belonging to the defendant or owing a debt to the defendant at the time of service upon them of the writ and notice shall deliver, transfer, or pay the property or debts to the peace officer_

(Emphasis added). See Pennington v. Employer’s Liability Assurance Corp., 520 P.2d 96, 98 (Alaska 1974) (AS 09.40.040 applied to garnishment proceeding). Also, Civil Rule 89(Z )(5) authorizes a judgment against the garnishee in certain instances after “service of the writ of attachment and notice.” (Emphasis added).

Civil Rule 89(f)(3) required Beery to serve two documents upon the Bank, i.e., a certified copy of the Writ and a notice specifying the property garnished. While Beery served the copy of the Writ, she only additionally served the Affidavit. She argues here that the information contained in the Affidavit fulfilled Rule 89’s mandate to “specify the property attached.”9 She states that “[n]o clearer identification of the property to be attached is possible.”

The notice required by Rule 89(f)(3), however, both specifies property and announces its garnishment. The notice is equally a notice of gamishwiewi as an identification of the garnished property. “Where personal property is in the possession of a third party ... to effectuate a legal attachment a notice of garnishment must be served on the party in possession.” Rock v. Gadberry, 206 Or. 313, 292 P.2d 1085, 1087 (1956) (citing former ORS 29.-170)10 (emphasis added).

[368]*368In this case, while Beery’s affidavit informed the Bank of the property she believed gamishable, it failed to inform the Bank that Ted Price had actually garnished such property. Indeed, the Bank received no written communication from the process server stating that a garnishment had occurred.

Both fairness and the policy of strict construction required Beery to provide a written notice of garnishment, not just a specification of garnishable property. Civil Form 189,11 worded for pretrial attachment, illustrates such a notice. That form states:

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Bluebook (online)
717 P.2d 365, 1986 Alas. LEXIS 315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beery-v-browning-alaska-1986.