Friday, January 10, 2014

Note to Myself: Can a Garnishee Defendant Object to Venue?

I want to write this down so that I don't forget it, but it is not a question that I wish to answer. Can a garnishee defendant object to venue?

Kentucky law has elaborate statutory venue provisions which control the permitted location for civil action of various types. See: William H. Fortune, Venue of Civil Actions in Kentucky, 60 Ky. L.J. 497 (1972).

KRS 425.501 – Proceedings for obtaining order of garnishment, provides:
 "(1) Any person in whose favor a final judgment in personam has been entered in any court of record of this state may, upon the filing of an affidavit by him or his agent or attorney in the office of the clerk of the court in which the judgment was entered, and in the same cause in which said judgment was obtained showing the date of the judgment and the amount due thereon, and that one (1) or more named persons hold property belonging to, or are indebted to, the judgment debtor, obtain an order of garnishment to be served in accordance with the Rules of Civil Procedure." [emphasis added]
Garnishment was not known in the common law. Rather it is a statutory invention.See, generally, Rood, John R., A Treatise on the Law of Garnishment, West Publishing Co. (1896).
"Garnishment is a special auxiliary remedy for the more effectual recovery of debts. It is always ancillary to the main action under which it is prosecuted, and therefore necessarily goes down with it. It is not a new suit, and necessarily before the same court as the main action . . . it is essentially and in effect a suit or action against the garnishee by the defendant, in the name and for the benefit of the plaintiff. "  Ibid p. 3 - 4 [footnotes omitted]
 In effect, KRS 425.501 makes service of a garnishment order upon a garnishee defendant the commencement of a civil action against the garnishee, which is subject to the same defenses the garnishee could assert against the judgment debtor if the suit had been brought directly. [citations omitted]

In theory, if not in actual practice, Kentucky's garnishment statute places no obvious limits upon the nature of the garnishee's indebtedness to the judgment debtor that is subject to a garnishment proceeding. Thus, in theory, a judgment creditor could garnish a judgment debtor's cause of action in rem or for personal injury, against a third party garnishee defendant. It would be similar to a subrogation by operation of law. [research omitted]

Clearly, a garnishee defendant may waive any objection to venue in such a case, but also it could be asserted. What a court might do in this instance is anyone's guess. KRS 425.501 makes it clear that the garnishment must be brought in the original action, but doing so might work a substantial unfairness upon the garnishee defendant.

The whole issue fails my basic test for practicality, but there it is nonetheless.