Capital Services, Inc. v. Dahlinger Pontiac-Cadillac, Inc. , 232 Kan. 419 ( 1983 )

Miller, J.,

dissenting:

I agree with the majority that the answer form prescribed- by K.S.A. 60-718(a), and now amended by 1982 Session Laws of Kansas, Chapter 247 § 2, is misleading. The effect of that form is to lay a trap for the unwary.

K.S.A. 60-717 prescribes the forms for an order of garnishment. It informs the garnishee that “[y]our answer on the form served herewith shall constitute substantial compliance with this order.”

The answer form requires the garnishee to declare under oath that “(1) I hold money or am indebted to the defendant ... as of the date of this answer, in the following manner and amounts, to wit:__” The answer concludes with the statement that “I will hold the above described moneys ... in my possession until the further order of the court.”

Such answer is declared by the legislature as being in substantial compliance with the garnishment order. The garnishee is thus lulled into a false sense of security: If the garnishee answers truthfully, and holds the money in its hands as of the date of the answer, it is doing what the court expects it to do. Not so, according to the majority opinion. The garnishee may also be liable for any funds coming into its hands between the date the answer is executed and the minute the clerk of the district court stamps the answer “Filed.”

If the garnishor wishes to attach such funds, I would require the answer form submitted to the garnishee to convey a warning in the following or similar language:

“(1) I hold money or am indebted to the defendant . . . as of the date of this answer, in the following manner and amounts: $_and I will hold this sum, together with all additional funds of the defendant coming into my hands up until this answer is filed with the clerk of the district court, until the further order of the court.”

The garnishment statutes are conflicting. The garnishee should not be penalized or subjected to liability because its duty is not spelled out clearly in the statutes, or in the documents served upon it. The trial court’s order is fair and just. The garnishee substantially complied with the order of garnishment. It should therefore be discharged.

I respectfully suggest that the order of the learned trial judge should be affirmed.

Holmes, J., joins in the dissent.