THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Bank of Guam v. Eliwise ,
4 FSM Intrm. 150 (Pohnpei 1989)


[4 FMS Intrm. 150]

BANK OF GUAM,
Plaintiff,

vs.

FRANCISCO ELWISE,
Defendant.

YVETTE ETSCHEIT ADAMS, d/b/a
CARLOS ETSCHEIT SOAP STORE,
Garnishee.

FSM CIV. 1989-036

OPINION

Arthur Ngiraklsong
Temporary Associate Justice
October 3, 1988

APPEARANCES:
For the Plaintiff:          Daniel J. Berman
                                     Attorney-at-Law
                                     P.O. Box 1491
                                     Pohnpei, FSM  96941

[4 FMS Intrm. 151]

For the Defendant:     pro se
For the Garnishee:     pro se

*    *    *    *

HEADNOTES
Attachment and Execution
     Although there is no provision for garnishment in Pohnpei state law nor any national statute explicitly providing for garnishment, garnishment of wages is an acceptable means for enforcing an unpaid judgment, pursuant to the FSM Supreme Court's statutory "general powers," its power to enforce judgments in any manner common in courts in the United States, and its power to issue writs of attachment.  Bank of Guam v. Elwise, 4 FSM Intrm. 150, 152 (Pon. 1989).

Attachment and Execution
     Although technically attachment and garnishment are distinct processes, attachment applying to assets in the defendant's possession and garnishment involving assets in the possession of a third party, the statutory language regarding attachment would seem to apply to both cases.  Bank of Guam v. Elwise, 4 FSM Intrm. 150, 152 (Pon. 1989).

Attachment and Execution
     The requirements and procedures for issuing a writ of garnishment should be the same as those applied to attachment proceedings.  Bank of Guam v. Elwise, 4 FSM Intrm. 150, 152 (Pon. 1989).

Attachment and Execution
     The FSM Supreme Court's power to issue writs of garnishment is clearly discretionary.  Bank of Guam v. Elwise, 4 FSM Intrm. 150, 152 (Pon. 1989).

Attachment and Execution
     Where garnishment is warranted, then anything beyond what is reasonably necessary for the defendant to support himself and his dependents can be garnished.  Bank of Guam v. Elwise, 4 FSM Intrm. 150, 153 (Pon. 1989).

*    *    *    *

COURT'S OPINION
ARTHUR NGIRAKLSONG, Temporary Associate Justice:
     Plaintiffs in this case have moved for the garnishment of a portion of the defendant's wages in order to enforce a default judgment entered by this Court on August 24, 1989.  Since it is the first time that this Court has considered such a request, a brief discussion of the Court's authority to issue a writ of garnishment is appropriate.

     Traditionally, garnishment is regarded as an exclusively statutory

[4 FMS Intrm. 152]

remedy.  See, e.g., Farmers Ins. Exchange v. Ledesma, 214 F.2d 495 (10th Cir. 1954); 38 C.J.S. Garnishment 1, at 201-02 (1943).  Normally, as with "all remedies providing for seizure of person or property for the purposes of securing satisfaction of the judgment," state law would control except to the extent that any national statute is applicable.  FSM Civ. R. 64.  Because there is no state provision for garnishment in Pohnpei, however, nor any national statute in the FSM explicitly providing for garnishment and setting out the procedures and requirements for garnishment, it is necessary to examine the powers of the Court under several broader statutory provisions.

     The FSM Code includes, under the "General powers of the Supreme Court," that "The Supreme Court and each division thereof shall have the power to issue all writs and other process, make rules and orders, and do all acts, not inconsistent with law or with the rules of procedure and evidence established by the Chief Justice, as may be necessary for the due administration of justice..."  4 F.S.M.C. 117.  The Court has in the past used this as the basis for its power to issue writs of mandamus, Nix v. Ehmes, 1 FSM Intrm. 114, 118 (Pon. 1981), and writs of certiorari, In re Edward, 3 FSM Intrm. 285, 288 (App. 1987), even though neither of these are specifically provided for in statutes or in the Constitution. More specifically, the Court has the power to enforce judgments "in any...manner known to American common law or common in courts in the United States."  6 F.S.M.C. 1404.  Garnishment was not known to the common law, and exists only by virtue of statute in the United States, Harris v. Balk, 198 U.S. 215, 25 S. Ct. 625, 49 L. Ed. 1023 (1904), but certainly it is "common in courts of the United States" within the meaning of the FSM Code.

     Finally, but perhaps most importantly, under "Writs of attachment" the FSM Code provides that "Debts payable to the defendant may be similarly attached by special order issued by the Trial Division..."  6 F.S.M.C. 1405(2).  Technically, attachment and garnishment are distinct processes.  Attachment applies to assets in the defendant's possession, and garnishment involves assets of the defendant which are in the possession of third parties.  However, the language of section 1405(2) would seem to apply to both cases.  It can be noted that although formally distinct, the word "attachment" is also used to cover "garnishment" in some jurisdictions.  Cf. First Nat'l Bank v. Bryant, 213 P.2d 1002 (Kan. 1950).

     The Court finds, therefore, that garnishment of wages is within the power of the Court and is an acceptable means for enforcing an unpaid judgment.  The requirements and procedures for such process should be the same as those applied to attachment proceedings.

     Of course, the Court's power to issue writs of garnishment is clearly discretionary:  4 F.S.M.C. 117 reads that the Court "shall have power to issue all writs...which may be necessary"; 6 F.S.M.C. 1405 says that debts payable to the defendant "may be...attached" (emphasis added); and 6 F.S.M.C. 1404 allows certain methods of enforcement "if the Trial Division of the High Court deems justice requires" (emphasis added).

     Should the Court decide that garnishment as with writs of attachment,

[4 FMS Intrm. 153]

is warranted, then anything beyond what is reasonably necessary for the defendant to support himself and his dependents can be garnished.  6 F.S.M.C. 1405 exempts from attachment "so much of any salary or wages as the Court deems necessary for the support of the person against whom the order is issued or his dependents."  Similarly, 6 F.S.M.C. 1409 mandates that in issuing orders in aid of judgment the Court "shall allow the debtor to retain such property and such portion of his income as may be necessary to provide for the reasonable living requirements of the debtor and his dependents..."

     In the present case, based upon the affidavit of plaintiff's counsel and upon the testimony of the defendant and the garnishee, the Court finds garnishment to be an appropriate remedy, and the garnishee shall pay the plaintiff $35.00 bi-weekly from the defendant's wages until the judgment against the defendant is satisfied.

     So ordered the 3rd day of October, 1989.

*    *    *    *