In both the cases under consideration in these motions the judgment defendant purchased furniture from the judgment plaintiff on credit and defaulted in his promised payments. As a result a judgment was confessed against the judgment defendant by the plaintiff for the amount of the bill. Subsequently, an attachment was issued and the writ served by the Sheriff of New Castle County upon the employer, which in both cases was the City of Wilmington, by service upon the City Treasurer, Public Building, Wilmington, Delaware. In the case of Cooper's Home Furnishings, Inc. v. Lester Lolley, the Sheriff of New Castle County served a first pluries attachment fi. fa. to the June Term, 1969, upon Mrs. S. Spencer of the office of the City Treasurer, Public Building, Wilmington, Delaware on April 14, 1969. The City of Wilmington as garnishee filed no answer in this Court but made one deduction from the judgment defendant's pay in the sum of $7.90 in response to the writ. That single deduction was sent to the Sheriff of New Castle County who in turn transmitted this $7.90 deduction to the plaintiff's attorney.
In the case of Cooper's Home Furnishings, Inc. v. Junior Lee King, a first pluries attachment fi. fa. to the September Term, 1969, was issued and served by the Sheriff of New Castle County upon Mr. B. O'Donnell of the Office of the City Treasurer, Public Building, Wilmington, Delaware. This attachment was served on July 14, 1969. Again no appearance was made by garnishee and no answer was filed in response to the attachment. One deduction was made from the judgment defendant's pay in the sum of $8.90 in response to this writ which was sent to the Sheriff of New
The plaintiff's attorney has now filed a motion in this Court to compel the garnishee, pursuant to 10 Del.C. § 3509, in each case, to appear in this Court and answer or plead to the first pluries attachment fi. fa. served upon the Office of the City Treasurer as garnishee by the Sheriff of New Castle County. The judgment plaintiff further moves the court for an order directing the City of Wilmington as garnishee to pay to the Sheriff of New Castle for the benefit of the judgment plaintiff 10% of the judgment defendant's wages from the date of the service of the attachment by the Sheriff of New Castle County in each case until the return date of the attachment writ in each case.
Determination of the issues raised will be made in accordance with the provisions of the following statutes and rules of court.
Title 10, Del.C. § 3509, reads as follows:
Rule 5(aa) (2) of the Superior Court Rules — Civil, reads as follows:
Title 10, Del.C. § 4913(a) and (c), reads as follows:
It is the position of the garnishee that payment of the statutory amount made directly to the Sheriff upon notice of garnishment constitutes more than 10 Del.C. § 3509 requires and eliminates the need to file an answer. In addition, the garnishee argues that under 10 Del.C. § 4913(a) and (c), the writ of attachment requires only one deduction of 10% of the sum of money due and owing at the time the writ is served, and there is no continuing effect of the writ beyond that moment.
It is the opinion of the Court that under the clear and unambiguous language of 10 Del.C. § 3509 and Rule 5(aa) (2), a garnishee must file a verified answer within 20 days following the service and process upon him. § 3509 provides that the garnishee himself is subject to attachment if he fails to appear and answer or plead. It is clearly insufficient for the garnishee, without notice to the plaintiff creditor and without any verification or statement to plaintiff as to the value of property or amount of wages in the hands of the garnishee, to unilaterally determine what total sum is due and owing, to compute 10% of that amount, and put in the hands of the Sheriff an unverified sum of money in satisfaction of the garnishment proceeding. Judicial procedure has always required orderly methods and timely filing to assure that each party to any proceeding has equal opportunity to present and plead his case. The payment of an unverified sum to the Sheriff, without more, cuts off the creditor's rights to take exception to the garnishee's figures or valuations, and is in contradiction of the clear meanings expressed in the statute and the rule. The garnishee must file a verified answer.
The second argument advanced by the garnishee is also without merit. Garnishment attaches at the time the garnishee is served and continues upon all moneys which accrue to the debtor's credit until the garnishment is answered. There is nothing in the language of § 3509 or § 4913 which indicates that only wages due and owing at the time of service of the garnishment summons are subject to attachment. Had the legislature intended that effect it could have so worded the statutes. Instead, § 4913 limits wage attachments to the amount due for a stated and regular pay period, except that no such pay period shall exceed one month.
In 2 Wooley on Delaware Practice, Section 1192, at Page 818, it is stated:
Thus, Delaware law contemplates attaching property which comes into the hands of the garnishee subsequent to the serving of the attachment upon the garnishee until the garnishee makes his answer.
Plaintiff's motions are granted.
It is so ordered.