§652-1.5  Prejudgment garnishment;
procedures.  (a)  Except as provided in subsection (e), any creditor
desiring to secure a garnishment process before judgment shall attach the
creditor's petition for process, summons, and direction to the following documents:



(1)  An application, directed to the court to which
such action is made returnable, for garnishee process to issue under section
652-1(a);



(2)  An affidavit sworn to by the creditor or some
competent affiant setting forth a statement of facts sufficient to show that
probable validity exists to sustain the validity of the creditor's claim;



(3)  An order that a hearing be held before the court
or a judge thereof to determine whether or not the garnishee process should be
granted and that notice of such hearing be given to the defendant debtor;



(4)  A summons directed to a proper officer commanding
the officer to serve upon the debtor at least four days prior to the date of
the hearing, pursuant to chapter 634, the application, a true and attested copy
of the petition, summons, and direction, the affidavit, and the order and
notice of hearing.



(b)  The clerk upon receipt of all such
documents in duplicate, if the clerk finds them to be in proper form, shall fix
a date for the hearing on the application and sign the order of hearing and
notice; except that if the application includes a request for a temporary
restraining order, the court or a judge of the court shall act on the
application for the temporary restraining order, fix a date for the hearing on the
garnishee process and sign the order of hearing and notice.



(c)  The clerk shall deliver to the creditor's
attorney the original documents for service.  Service having been made, the
original documents shall be returned to the court with the endorsement by the
officer of service.



(d)  The defendant debtor shall have the right
to appear and be heard at the hearing.  The hearing shall be limited to a
determination of whether probable validity exists to sustain the validity of
the creditor's claim and whether any of the property or choses in the
possession of the garnishee is, to the same degree of certainty, exempt from
execution.  If the court, upon consideration of the facts before it, finds that
the creditor has sustained the validity of the creditor's claim, then the
garnishee process under section 652-1(a) applied for shall be granted as
requested or modified by the court except to the extent the defendant debtor
has shown all or a portion of the property or choses in the possession of the
garnishee to be exempt from execution.  The clerk shall deliver to the
creditor's attorney the petition, summons, and direction for service of
process.  If the court denies the application, only a summons and complaint
shall be served.  In either event, the creditor may alter the return day of the
petition, summons, and direction, or the summons and complaint, as the case may
be.



(e)  The court or a judge of the court may
allow the garnishment process to be issued by an attorney without hearing as
provided in subsections (a) to (d) upon verification by oath of the creditor or
of some competent affiant, that there is reasonable likelihood that the
defendant debtor:



(1)  Neither resides in nor maintains an office or
place of business in this State and may depart from the State within six months
from the date of filing under this section;



(2)  Has hidden or will hide oneself so that process
cannot be served on the defendant debtor;



(3)  Is about to remove oneself or one's property from
this State;



(4)  Is about to fraudulently dispose of or has
fraudulently disposed of any of the defendant debtor's property with intent to
hinder, delay, or defraud the defendant debtor's creditors; or



(5)  Has fraudulently hidden or withheld money,
property, or effects which should be liable to the satisfaction of the
defendant debtor's debts.



(f)  The defendant debtor in an action in which
garnishee process was allowed under subsection (e) may move to dissolve or
modify the garnishee process in which event the court shall proceed to hear and
determine the motion expeditiously.  If the court determines at the hearing
requested by the debtor that probable validity exists to sustain the validity
of the creditor's claim, then the garnishee process granted shall remain in
effect, except as modified pursuant to a finding that all or a portion of the
property or choses in action in the possession of the garnishee is exempt from
execution.  If the court determines there is no such probable validity, the
garnishee process shall be dissolved.  An order shall be issued by the court
setting forth the action it has taken.



(g)  The court's determinations under this
section shall have no effect on the determination of any issues in the action
other than the issues relevant to proceedings under this section nor shall they
affect the rights of the defendant debtor in any other action arising out of
the same claim.  The court's determinations under this section shall not be
given in evidence nor referred to in the trial of such action. [L 1975, c 155,
§1(1); am L 1977, c 33, §3; gen ch 1985]



 



Hawaii Legal Reporter Citations



 



  Garnishment against State.  80-2 HLR 800725.