§652-1  Garnishee process; "garnishee
fund".  (a)  Before judgment.  When any goods or effects of a debtor
are in the possession of an attorney, agent, factor, or trustee (in this
chapter jointly and severally included in the term "garnishee"), or
when any debt is due from any person (also included under the term
"garnishee") to a debtor, or when any person has in the person's
possession for safekeeping any moneys of the debtor, any creditor may bring the
creditor's action against the debtor and in the creditor's petition for
process, or by amendments of the complaint at any time before judgment, after
meeting the requirements of section 652-1.5, may request the court to insert in
the process a direction that service of a true and attested copy thereof be made
upon the garnishee in any of the manners described under section 652-2.5 and to
summon the garnishee to appear personally upon the day or term appointed in the
process for hearing the action or at any other time appointed by the court and
then and there on oath to answer all of the following inquiries, herein
inclusively referred to as the "disclosure":



(1)  Whether at the time the copy was served on the
garnishee, the garnishee had any of the goods or effects of the defendant in
the garnishee's hands and, if so, the nature, amount and value thereof;



(2)  Whether at the time of service, the garnishee was
indebted to the defendant and, if so, the nature and amount of the debt; or



(3)  Whether at the time of service on the garnishee,
the garnishee had any moneys of the defendant in the garnishee's possession for
safekeeping and, if so, the amount thereof.



The summons and direction shall be signed and
issued as is usual in other civil process after proceedings under section
652-1.5.  The summons shall specify an amount or value of money, debt or goods
or effects to be garnished which shall not exceed one hundred twenty per cent
of the amount of the plaintiff's claim, including cost and interest.  The
summons shall be served upon the garnishee in any of the manners described
under section 652-2.5.  From the time of service, the garnishee shall secure in
the garnishee's hands to pay such judgment as the plaintiff shall recover in
the action, such of the following property or choses then in the garnishee's
possession or owing to the defendant as shall equal the amount or value
specified in the summons, except what the court has expressly found to be
exempt from execution pursuant to section 652-1.5(d) or (f):



(1)  The goods and effects of the defendant then in the
hands of the garnishee;



(2)  Any debt then owing from the garnishee to the
defendant;



(3)  Moneys of the defendant then in the possession of
the garnishee for safekeeping; and



(4)  A portion of the defendant's wages, salary,
stipend, commissions, annuity, or net income under a trust (in this chapter
included under the term "wages"), remaining after the deduction of
any amounts required by law to be withheld by withholding the amount to be
determined as follows:  five per cent of the first $100 per month, ten per cent
of the next $100 per month, and twenty per cent of all sums in excess of $200
per month, or an equivalent portion of the above amount per week, whether then
or thereafter to become owing.



The property or choses described in (1), (2), (3),
and (4) of this paragraph are included under the term "garnishee
fund" (in this chapter).  The cumulative total value of the fund, in
advance of final judgment, shall be no more than the amount specified in the
summons.



Except as provided in section 652-1.5, the
summons and direction shall be sufficient notice to the defendant to enable the
plaintiff to bring the plaintiff's action to trial, unless the defendant is an
inhabitant of the State or has some time resided therein, in which case a like
copy shall be served personally upon the defendant or left at the defendant's
last and usual place of abode.



The court shall order the garnishee fund
released at the hearing provided in section 652-1.5 or thereafter upon the
filing by the debtor with the court of a bond or bonds issued by a surety or
sureties licensed to do business as such in the State, in an amount sufficient
to pay the claim of the creditor together with costs and interest, and
conditioned upon judgment rendered in favor of the creditor and to the extent
the claim or any portion thereof, together with costs and interests, if any, is
awarded.



(b)  After judgment.  Wages may be garnisheed
after judgment at the rate specified in subsection (a).  In any action brought
by a creditor against a debtor, the creditor may, after judgment rendered in
the creditor's favor, request the court to summon any garnishee to appear
personally, upon a day appointed in the summons for hearing the cause as
against the garnishee, and make full disclosure; or in any action brought in
the district court by a creditor against a debtor, the creditor may, ten days
after judgment rendered in the creditor's favor, file a certified copy of the
judgment and the creditor's affidavit as to the amount due and unpaid on
account of the judgment with the employer of the judgment debtor and the
employer shall thereupon either file a disclosure within one week or shall
withhold from the wages of the judgment debtor the amounts as provided herein
and pay the same to the judgment creditor.



Alias summons shall also be issued and served
upon the garnishee in any of the manners described under section 652-2.5.  At
the time of service, any and every element of any garnishee fund then in the
hands of the garnishee shall be there secured to pay the judgment already
recovered and may not otherwise be disposed of by the garnishee.



(c)  Return by garnishee.  Any garnishee
summoned, whether before or after judgment, may file in the court issuing the
summons, on or before the return day thereof, a return under oath containing a
full disclosure.  A copy of the return shall be served on the plaintiff or the
plaintiff's attorney on or before the return day.  The filing of the return
shall be deemed prima facie a compliance with the summons; provided that either
party to the action may, upon written notice served upon the garnishee, require
the garnishee to appear and be examined under oath as to such disclosure or as
to the garnishee's liability as garnishee.



(d)  Garnishee fund excessive.  At any time
after service of summons, the court, upon the consent of the plaintiff or upon
motion of the defendant or of the garnishee and notice to the plaintiff, shall
determine whether the garnishee fund is excessive in amount in comparison with
subsection (a) of this section or with the judgment rendered and may thereupon
release the remainder thereof from being so secured.



(e)  If any party named in the process as
garnishee is a corporation, firm, or person having places of business in more
than one judicial circuit or district in the State, the service of process upon
the garnishee upon service in any one circuit or district shall operate to
secure the garnishee fund in each place of business in the State.



(f)  No employer shall be liable to anyone for
deductions and payments to judgment creditors from wages of judgment debtor
employees, as herein provided, when the employer in good faith believes, or has
reason to believe, that service of the certified copy of the judgment and
affidavit of the judgment creditor as provided in (b) herein affects the same.
[L 1876, c 35, §1; am L 1917, c 124, §1; am L 1919, c 157, §1; am L 1921, c 66,
§1; RL 1925, §2826; am L 1925, c 262, §1; am L 1927, c 96, §1; am L 1931, c 68,
§1; am L 1933, c 172, §1; RL 1935, §4270; am L 1939, c 212, §1; RL 1945,
§10301; RL 1955, §237-1; am L 1959, c 65, §1; am L 1961, c 167, §§2, 3; am L
1965, c 89, §§1, 2; HRS §652-1; am L 1970, c 86, §2; am L 1975, c 155, §1(2);
am L 1977, c 33, §2; am L 1978, c 247, §1; gen ch 1985; am L 1992, c 82, §2; am
L 1997, c 56, §1]



 



Cross References



 



  Federal restrictions on garnishment, see Pub L 90-321, Title
III (15 U.S.C. §1671 ff).



 



Law Journals and Reviews



 



  Funds in joint bank account; presumption as to ownership of
the funds by the debtor.  Haw Supp, 6 HBJ 25.



 



Case Notes



 



  Where general contractor denied being "indebted" to
subcontractor in general contractor's garnishee disclosure, general contractor
was indebted to subcontractor for the purposes of this section.  179 F.3d 829.



  Notwithstanding Sniadach v. Family Finance Corp. (395 U.S.
337), provisions on garnishment of corporation's checking account, payroll
account and payments due on completed contracts are not violative of due
process.  317 F. Supp. 150.



  Issuance of ex parte writs of garnishment to be served on
personal checking accounts which may contain AFDC (assistance) grants held
unconstitutional.  431 F. Supp. 1369.



  Affidavit method of post-judgment garnishment of wages does
not contravene constitutional requirements of procedural due process.  467 F.
Supp. 544.



  Garnishee process does not authorize attachment of money or
goods but only debts owing to judgment debtor.  6 H. 623.  "Effects",
embraces what.  16 H. 106; 35 H. 772.  "Any person" includes
municipal corporation.  23 H. 564.



  Service on corporation, 6 H. 259; on attorney-in-fact of
garnishee, 6 H. 659; of defective copy on garnishee, 14 H. 627.  "Last and
usual place of abode".  20 H. 132, aff'd 233 U.S. 70.  Service required by
this section is due process of law.  20 H. 132, aff'd 233 U.S. 70.  Defective service waived by general appearance of garnishee.  18 H. 593.  See,
generally, 5 H. 489; 6 H. 153; 7 H. 72; 10 H. 325; 22 H. 321; 27 H. 655; 28 H.
528.  Service on garnishee is sufficient notice to non-resident defendant.  22
H. 321.  Garnishee may appear and orally disclose.  15 H. 645.  Substitute
process.  34 H. 328.  Interpleader.  33 H. 557.



  Petition in writing, must contain specific request for
garnishee process.  5 H. 664.  Sufficiency of request for issuance of process. 
22 H. 723.  Examination before "judge at chambers".  22 H. 229. 
Before district magistrate.  19 H. 625.  Both debtor and garnishee summoned on
same order.  22 H. 229.



  Rights accrue at time of service.  28 H. 528, 533.  Annuity. 
31 H. 418, 427.  Assignment.  5 H. 589; 30 H. 158.  As to priority of claim
where garnishment and mechanic's lien are involved.  9 H. 23.  Judgment
concludes "trial" and discharges garnishee.  27 H. 749.  Garnishee
set-off.  19 H. 83.  Rights between "foreign receiver" and domestic
creditors.  10 H. 325; 10 H. 327.  Garnishee summons does not take precedence
over a garnishment of a new employer under §652-5, priority of each being
determined according to time of receipt by garnishee.  50 H. 223, 437 P.2d 95.



  When trustee under private trust may be held as garnishee. 
11 H. 466; 32 H. 78.  Trustee in bankruptcy.  33 H. 337.  Assignee in
bankruptcy.  5 H. 445.  Debt owing partnership cannot be garnisheed in action
against one of the partners.  14 H. 300; and see 6 H. 153; 6 H. 157.  Money
with clerk, still subject to judicial action, is not subject to garnishment. 
10 H. 499.  Debt subject to contingency and not due or to become due by mere
lapse of time, is not subject to garnishment.  11 H. 202; 27 H. 297. 
Unliquidated claim for damages for breach of contract is not subject to
garnishment.  20 H. 702.  "Debts" do not include those controverted
by garnishee.  27 H. 651.  Liability under implied promise to pay reasonable
attorney's fee is subject to garnishment.  47 H. 252, 386 P.2d 886.  Claim for
unliquidated damages for breach of contract does not constitute debt, and
garnishment is not available.  308 F. Supp. 59.



  Garnishee's denial of liability is not conclusive.  48 H. 68,
395 P.2d 691.



  As applied to bank accounts, statute is violative of due
process clause.  54 H. 656, 513 P.2d 1390.



  Garnishor has a right to examine garnishee under oath when
garnishee denies indebtedness.  71 H. 393, 793 P.2d 170.



  Pledgor's interest in pledged stock, though subject to bank's
security interest, was garnishable under this chapter.  92 H. 347, 992 P.2d 42.



 



Hawaii Legal Reporter Citations



 



  Declared unconstitutional.  77 HLR 77-837.