United States of America for the Use of Theodore A. Tanos v. St. Paul Mercury Insurance Company

361 F.2d 838

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 18, 1966
• Docket: 22345
• Status: Published

Opinions

ORIE L. PHILLIPS, Circuit Judge r

Taños, a use plaintiff, obtained a money judgment in the United States District Court for the District of Puerto Rico on July 3, 1962, which became final. He thereafter instituted this action in garnishment in the United States District Court for the Southern District of Florida, naming St. Paul Mercury Insurance Company¹ as garnishee. The writ of garnishment was issued and was served upon the Insurance Company by a Florida county sheriff. The court sustained the Insurance Company’s motion to quash the service of the writ on the ground that the sheriff was not authorized to serve the writ. Thereafter, Taños caused a second writ of garnishment to be issued, which was served on the Insurance Company by the United States Marshal. The garnishee filed an answer to the writ, denying it was indebted to the judgment debtor, or had in its possession any money, goods, chattels, credits, or effects of the judgment debtor.

The Insurance Company was the surety on a supersedeas bond, given to supersede a judgment running in favor of the judgment debtor. The judgment had become final. Other persons were claiming the amount due on such judgment, adversely to the judgment debtor. After the service of the first garnishment writ had been quashed and prior to the time the second writ of garnishment was served, the Insurance Company had obtained an order from a state court permitting it to deposit in the registry of such court the full amount due on the superseded judgment, and the Insurance Company had so deposited such amount. Accordingly, at the time the second writ of garnishment was served, the Insurance Company was no longer indebted to the judgment debtor. From a summary judgment in favor of the Insurance Company, Taños has appealed.

The sole question presented is whether the court erred in quashing the service of the first writ of garnishment.

Rule 1.3(c) of the Florida Rules of Civil Procedure (30 F.S.A., page 18) in part here material provides:

“(c) Service — By Whom Made. Service of process may be made by any officer authorized by law to serve process; but if such officer shall, for any reason be disqualified or unable to act, the Court may appoint any competent person not interested in the case on trial to serve such process.”

Rule 4(c) of the Federal Rules of Civil Procedure in part here material provides:

“(c) By Whom Served. Service of all process shall be made by a United States marshal, by his deputy, or by some person specially appointed by the court for that purpose, * * Italics ours.

Rule 64 of the Federal Rules of Civil Procedure in part here pertinent provides :

“At the commencement of and during the course of an action, all remedies providing for seizure of person or property for the purpose of securing satisfaction of the judgment ultimately to be entered in the action are available under the circumstances and in the mannerprovided by the law of the state in which the district court is held, existing at the time the remedy is sought, subject to the following qualifications: (1) any existing statute of the United States governs to the extent to which it is applicable; * * *. The remedies thus available include * * * garnishment, * * *.”

Rule 1.3(c) of the Florida Rules of Civil Procedure is a rule applicable generally to service of process in civil actions, and is not limited in its application to service of writs of garnishment, or other supplementary writs.

Moreover, the Federal Rules of Civil Procedure have statutory effect² and Rule 64, supra, provides that “any existing statute of the United States governs to the extent to which it is applicable.”

We are of the opinion that Rule 4(c), supra, governs the service of writs of garnishment issued in a proceeding in a federal court, rather than Rule 1.3(c), supra, which is not a rule peculiarly applicable to service of writs of garnishment.³

We conclude the order quashing the service was proper.

Affirmed.

1 . Hereinafter called the Insurance Company.

2 . Moore’s Federal Practice, 2nd Ed., Vol. 7, Ch. 69, ¶69.04. See also, Rumsey v. George E. Failing Company, 10 Cir., 333 F.2d 960, 962.

3 . Rumsey v. George E. Failing Company, supra; Mid-Continent Casualty Company v. Everett, 10 Cir., 340 F.2d 65, 69; Moore’s Federal Practice, supra, ¶69.-03 [2], ¶69.04 [2], n. 1, p. 2413.