.
Steele Hays, Justice.
This is an appeal from a writ of garnishment on a certificate of deposit held in joint tenancy. The trial court found the funds were in fact those of the debtor and sustained the garnishment. The debtor appealed to the Court of Appeals and the order was affirmed by a three to three decision. See Maloy v. Stuttgart Memorial Hospital, 42 Ark. App. 16, 852 S.W.2d 819 (1993). We granted appellant’s petition to review. When we review a decision of the Court of Appeals under Rule l-2(f) of our rules we review the case as though it had been originally filed in this court. Patterson v. State, 267 Ark. 436, 591 S.W.2d 356 (1979). See also Cagle Fabricating & Steel, Inc. v. Patterson, 309 Ark. 365, 830 S.W.2d 857 (1992); Hall’s Cleaners v. Worthen, 311 Ark. 103, 842 S.W.2d 7 (1992); and Leach v. State, 311 Ark. 485, 845 S.W.2d 11 (1993).
Beulah Irene Maloy, appellant, was indebted to the Stuttgart Memorial Hospital, appellee, for $6,234.94. On June 8, 1990, a default judgment was entered in favor of the hospital. On September 16, 1991, the hospital served a writ of garnishment on Farmers and Merchants Bank of Stuttgart, Arkansas. The bank responded that it had two certificates of deposit totalling $8,620.79, held jointly in the names of appellant and her mother, India Ola Glover.
On September 27, 1991, appellant filed her objection to the garnishment and a motion to dismiss the writ on the grounds that the funds on.deposit were not hers, but her mother’s. On the same date an order directing the garnishee to pay the sum of $7,703.79 to the hospital was filed with the clerk of the circuit court. It was agreed between the parties that the hospital’s attorney would hold the sums paid to him pursuant to the writ of garnishment until a hearing could be held upon appellant’s motion to dismiss.
A hearing was held in the circuit court of Arkansas County on December 19, 1991, and only the appellant presented evidence — testimony from her mother, her brother and herself. On January 24, 1992, the motion to dismiss the writ of garnishment was denied and the previous order directing delivery of $7,703.79 to the hospital was allowed to stand.
The seminal case in Arkansas on the question of garnishment of a joint banking account is Hayden v. Gardner, 238 Ark. 351, 381 S.W.2d 752 (1964), where the court set down the following rules:
1. [T]he joint account should be garnishable only in proportion to the debtor’s ownership of the funds, as to which parol evidence is admissible to show the respective contributions of each depositor, as well as any intent of one to make a gift to the other.
* *
2. [The court should first consider that] all of the joint bank account [is] prima facie subject to garnishment and that the burden [is] on each joint depositor to show what portion of the funds he or she actually own[s]. [Our emphasis.]
The court concluded:
We believe this is the fair and reasonable rule because the depositors are in a much better position than the judgment creditor to know the pertinent facts.
This appears to be the majority rule. See Note, Joint Bank Account as Subject of Attachment, Garnishment, or Execution by Creditor of One of the Joint Depositors, 11 A.L.R.3rd 1465 (1967 and Supp. 1993); Baker v. Baker, 710 P.2d 129 (Okla. App. 1985); The approach was summarized in Traders Travel Intern, Inc. v. Howser, 753 P.2d 244 (Hawaii 1988):
We now adopt the majority view that the debtor presumptively holds the entire joint bank account but may disprove this supposition to establish his or her actual equitable interest. In this way, the debtor, at -an evidentiary hearing, may prevent the judgment creditor from seizing more than the debtor’s fair share of the account. The judgment creditor, moreover, may introduce its own evidence on this issue. Should the debtor fail to show by a preponderance of the evidence that he or she does not possess the whole joint account, however, then the judgment creditor may confiscate all the deposits therein to satisfy the garnishment.
Under this approach, the hearing in this case began with the presumption that appellant was entitled to the whole of the certificate of deposit. The burden was on appellant to disprove this proposition and establish her actual interest in the CD. The crucial testimony was given by appellant’s mother, Ms. Glover. She testified that the source of the funds was from various articles owned by her and her late husband liquidated after his death. She put the proceeds into several joint CDs with each of her children. Only the CDs held jointly with appellant were at issue.
As to her reasons for putting the funds in these joint CDs, Ms. Glover gave divergent accounts: On the one hand she intended the money to remain hers throughout her life and at her death to be divided among her children. She explained this was so the children could more easily pay her bills if she became incapacitated. On the other hand she stated she put the money in joint names with her children to enable her to keep the money from creditors, a nursing home in particular, if she should have to enter one. She testified she’d heard that could be done, that she knew this at the time she opened the joint CDs and that her intent was to put the money beyond the reach of a potential nursing home creditor.
When there are issues of credibility and conflicting testimony, we defer to the superior position of the factfinder to resolve those questions. Guaranty National Insurance v. Denver Roller, Inc., 313 Ark. 128, 854 S.W.2d 312 (1993). The trial court made no findings in this case but simply held for the hospital, creating the inference that Ms. Glover failed to persuade the trial court she intended to keep the money for herself.
Appellant contends the only argument for sustaining the garnishment is that Ms. Glover intended a gift to appellant and there was no proof of actual delivery. Coristo v. Twin City Bank, 257 Ark. 554, 520 S.W. 2d 218 (1975). Without delivery, appellant concludes, there is insufficient proof to show any intention to make a gift. Appellant’s argument is unpersuasive for it misinterprets the burden of proof. There is no necessity for the hospital to prove a gift, so whether or not delivery was demonstrated is irrelevant. The analysis begins with the presumption that all the funds are garnishable. It is incumbent on the appellant as the depositor to prove otherwise. Hayden v. Gardner, supra. The hospital’s right to the funds is not dependent on finding a gift to appellant.
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.
Steele Hays, Justice.
This is an appeal from a writ of garnishment on a certificate of deposit held in joint tenancy. The trial court found the funds were in fact those of the debtor and sustained the garnishment. The debtor appealed to the Court of Appeals and the order was affirmed by a three to three decision. See Maloy v. Stuttgart Memorial Hospital, 42 Ark. App. 16, 852 S.W.2d 819 (1993). We granted appellant’s petition to review. When we review a decision of the Court of Appeals under Rule l-2(f) of our rules we review the case as though it had been originally filed in this court. Patterson v. State, 267 Ark. 436, 591 S.W.2d 356 (1979). See also Cagle Fabricating & Steel, Inc. v. Patterson, 309 Ark. 365, 830 S.W.2d 857 (1992); Hall’s Cleaners v. Worthen, 311 Ark. 103, 842 S.W.2d 7 (1992); and Leach v. State, 311 Ark. 485, 845 S.W.2d 11 (1993).
Beulah Irene Maloy, appellant, was indebted to the Stuttgart Memorial Hospital, appellee, for $6,234.94. On June 8, 1990, a default judgment was entered in favor of the hospital. On September 16, 1991, the hospital served a writ of garnishment on Farmers and Merchants Bank of Stuttgart, Arkansas. The bank responded that it had two certificates of deposit totalling $8,620.79, held jointly in the names of appellant and her mother, India Ola Glover.
On September 27, 1991, appellant filed her objection to the garnishment and a motion to dismiss the writ on the grounds that the funds on.deposit were not hers, but her mother’s. On the same date an order directing the garnishee to pay the sum of $7,703.79 to the hospital was filed with the clerk of the circuit court. It was agreed between the parties that the hospital’s attorney would hold the sums paid to him pursuant to the writ of garnishment until a hearing could be held upon appellant’s motion to dismiss.
A hearing was held in the circuit court of Arkansas County on December 19, 1991, and only the appellant presented evidence — testimony from her mother, her brother and herself. On January 24, 1992, the motion to dismiss the writ of garnishment was denied and the previous order directing delivery of $7,703.79 to the hospital was allowed to stand.
The seminal case in Arkansas on the question of garnishment of a joint banking account is Hayden v. Gardner, 238 Ark. 351, 381 S.W.2d 752 (1964), where the court set down the following rules:
1. [T]he joint account should be garnishable only in proportion to the debtor’s ownership of the funds, as to which parol evidence is admissible to show the respective contributions of each depositor, as well as any intent of one to make a gift to the other.
* *
2. [The court should first consider that] all of the joint bank account [is] prima facie subject to garnishment and that the burden [is] on each joint depositor to show what portion of the funds he or she actually own[s]. [Our emphasis.]
The court concluded:
We believe this is the fair and reasonable rule because the depositors are in a much better position than the judgment creditor to know the pertinent facts.
This appears to be the majority rule. See Note, Joint Bank Account as Subject of Attachment, Garnishment, or Execution by Creditor of One of the Joint Depositors, 11 A.L.R.3rd 1465 (1967 and Supp. 1993); Baker v. Baker, 710 P.2d 129 (Okla. App. 1985); The approach was summarized in Traders Travel Intern, Inc. v. Howser, 753 P.2d 244 (Hawaii 1988):
We now adopt the majority view that the debtor presumptively holds the entire joint bank account but may disprove this supposition to establish his or her actual equitable interest. In this way, the debtor, at -an evidentiary hearing, may prevent the judgment creditor from seizing more than the debtor’s fair share of the account. The judgment creditor, moreover, may introduce its own evidence on this issue. Should the debtor fail to show by a preponderance of the evidence that he or she does not possess the whole joint account, however, then the judgment creditor may confiscate all the deposits therein to satisfy the garnishment.
Under this approach, the hearing in this case began with the presumption that appellant was entitled to the whole of the certificate of deposit. The burden was on appellant to disprove this proposition and establish her actual interest in the CD. The crucial testimony was given by appellant’s mother, Ms. Glover. She testified that the source of the funds was from various articles owned by her and her late husband liquidated after his death. She put the proceeds into several joint CDs with each of her children. Only the CDs held jointly with appellant were at issue.
As to her reasons for putting the funds in these joint CDs, Ms. Glover gave divergent accounts: On the one hand she intended the money to remain hers throughout her life and at her death to be divided among her children. She explained this was so the children could more easily pay her bills if she became incapacitated. On the other hand she stated she put the money in joint names with her children to enable her to keep the money from creditors, a nursing home in particular, if she should have to enter one. She testified she’d heard that could be done, that she knew this at the time she opened the joint CDs and that her intent was to put the money beyond the reach of a potential nursing home creditor.
When there are issues of credibility and conflicting testimony, we defer to the superior position of the factfinder to resolve those questions. Guaranty National Insurance v. Denver Roller, Inc., 313 Ark. 128, 854 S.W.2d 312 (1993). The trial court made no findings in this case but simply held for the hospital, creating the inference that Ms. Glover failed to persuade the trial court she intended to keep the money for herself.
Appellant contends the only argument for sustaining the garnishment is that Ms. Glover intended a gift to appellant and there was no proof of actual delivery. Coristo v. Twin City Bank, 257 Ark. 554, 520 S.W. 2d 218 (1975). Without delivery, appellant concludes, there is insufficient proof to show any intention to make a gift. Appellant’s argument is unpersuasive for it misinterprets the burden of proof. There is no necessity for the hospital to prove a gift, so whether or not delivery was demonstrated is irrelevant. The analysis begins with the presumption that all the funds are garnishable. It is incumbent on the appellant as the depositor to prove otherwise. Hayden v. Gardner, supra. The hospital’s right to the funds is not dependent on finding a gift to appellant. Its claim is presumptively established as a judgment creditor having garnished funds of which the judgment debtor is a joint depositor.
As to remanding the case to the trial court to have Ms. Glover joined as a party, suggested by the dissent, neither party has raised this issue and we see no reason to do so on our own.
While the joinder of parties will not be invariably waived if not raised, see Martin v. Wilks, 490 U.S. 755 (1991), the necessity for joinder fades when that party’s interest has been fairly litigated. As the Martin opinion points out:
We have recognized an exception to the general rule [that a stranger to a judgment is not bound by it], when, in certain limited circumstances, a person, although not a party, has his interests adequately represented by someone else with the same interests who is a party.
At 762, fn2.
This court came to the same result in Carrigan v. Carrigan, 218 Ark. 398, 236 S.W.2d 579 (1951). In that case we held that where the wife of a party in a former suit had testified at that trial, and in fact was the witness whose testimony consumed a large part of the record, res judicata would be applied to her in a subsequent proceeding. We said:
The strict rule that a judgment is operative, under the doctrine of res judicata, only in regard to parties and privies is sometimes expanded to include as parties, or privies, a person who is not technically a party to a judgment, or in privity with him, but who is, nevertheless, connected with it by his interest in the prior litigation and by his right to participate therein, at least where such right is actively exercised by the employment of counsel, filing of an answer, payment of expenses of costs of the action, or doing of such other acts as are generally done by the parties.
We are not suggesting that an individual similarly situated to Ms. Glover could not be properly joined as a party at this stage of the proceedings, upon her own request and under the appropriate circumstances. In this case, however, Ms. Glover was an active participant in the proceeding before the trial court. In fact, it was on her testimony that the case was decided. Nor has the dissent suggested how Ms. Glover’s rights could have been better protected. Ms. Glover and the appellant clearly had the same interests and both testified to those ends.
In the absence of apparent prejudice or a request to intervene, we do not find it appropriate, under the equitable doctrine that governs ARCP 19, to remand the case sua sponte. See Wright and Miller, Federal Practice and Procedure, § 1609 at 143; § 1611 at 171-176 (1986).
The dissenting opinion cites the rule mentioned in McLarty Leasing Systems, Inc. v. Blackshear, 11 Ark. App. 178, 668 S.W.2d 53 (1984). That rule, retiring at best, expressly excludes testimony which is self-contradictory or from which differing inferences may be drawn. Jolley v. Meek, 185 Ark. 393, 47 S.W.2d 43 (1932); Kansas City Southern Railway Co. v. Lewis, 80 Ark. 396, 97 S.W. 56 (1906). Here, the testimony of Mrs. Glover, as we have noted, contained conflicting versions of her purpose in establishing the joint CDs. We cannot conclude that her testimony was arbitrarily disregarded by the trial court.
Affirmed.
Corbin, J., dissents.