H. B. 2596
(By Delegates Williams, Carper, Rutledge and Ashley)
[Introduced March 15, 1993; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections thirteen, fourteen, fifteen,
seventeen and eighteen, article five, chapter thirty-eight
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, relating to defining a suggestee's
obligation when served with a summons on a suggestion filed
by a judgment creditor.
Be it enacted by the Legislature of West Virginia:
That sections thirteen, fourteen, fifteen, seventeen and
eighteen, article five, chapter thirty-eight of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted to read as follows:
ARTICLE 5. PROCEEDINGS IN AID OF EXECUTION; INTERROGATORIES;
SUGGESTION.
§38-5-13. Contents of answer of person suggested; verification.
The answer of the person suggested shall state, in addition
to the matters required to be disclosed by the summons mentioned
in section ten of this article, the nature and amount ofliability or indebtedness to the judgment debtor at the time of
service of the summons, or a description of the property of the
judgment debtor held by the person suggested at the time of
service of the summons, and whether the liability of such the
person, or any part thereof, is represented by a negotiable
instrument, and, in the case of a bailee, whether there is
outstanding any negotiable warehouse receipt, bill of lading, or
other negotiable instrument for any of the personal property in
his or her possession or under his or her control. Such The
answer shall be verified in the manner prescribed for the
verification of other pleadings.
§38-5-14. Discharge of person suggested by payment of money or
delivery of property; officer's receipt.
A person suggested may, at any time before the return day of
the summons mentioned in section ten of this article, deliver the
property or pay the money for which he or she is liable, at the
time of the summons, or a sufficiency thereof to satisfy the
execution, and shall thereby be discharged from any further
liability under the execution, and, as to the property so
delivered and/or money so paid, he or she shall be discharged
from all liability whatsoever to the judgment debtor: Provided,
however, That if the obligation upon which such the person is
indebted to the judgment debtor is evidenced by a negotiable
instrument, such the obligation shall not, as to a holder in due
course, be discharged by such the payment: Provided further,
That the right of a holder in due course, of a negotiablewarehouse receipt, bill of lading, or other negotiable instrument
for any property so delivered, shall not be impaired by such the
delivery. If any payment or delivery is made to the officer
under the provisions of this section, the officer shall give a
receipt for, and make a return of, what is so paid and delivered.
§38-5-15. Order of court for payment by person suggested.
If it appears from the answer of the person suggested that,
at the time the writ of fieri facias was delivered to the officer
to be executed, or thereafter, and before the time of the filing
of the answer service of the summons, or the return day of the
writ of fieri facias, whichever comes first, such the person was
indebted or liable to the judgment debtor, or had in his or her
possession or under his or her control any personal property
belonging to the judgment debtor, and that he or she had not,
before notice of the delivery of the writ of fieri facias to the
officer, paid the money or delivered the property to the judgment
debtor, or upon his or her order, and that such the debt or
liability to pay such the money or deliver such the property was
not evidenced by a negotiable instrument, the court may order him
or her to pay the amount so due from him or her and to deliver
such the property, or any part of such the money or property, to
such the person as the court may designate as receiver:
Provided, however, That if it shall appear from the answer of the
person suggested, that his or her debt or liability to pay money
or deliver property is evidenced by a negotiable instrument, the
court may order such the payment or delivery, but only uponcondition that the holder of such the negotiable instrument shall
deliver the same to the person suggested simultaneously with the
payment of the money or delivery of the property: Provided
further, That any person suggested holding property under a
pledge or lien shall not be required to deliver up such the
property except upon payment to him or her of the debt secured by
the pledge or lien.
§38-5-17. Failure of person suggested to answer.
If any person suggested, summoned as provided in this
article, fails to answer, the court may either compel him or her
to answer, or hear proof of the matters required by section
fifteen of this article to be disclosed by such the person's
answer, concerning any debt or liability due by him or her to, or
personal property in his or her possession or under his or her
control of, the judgment debtor at the time of service of the
summons, and make such the orders in relation thereto as if what
is so proved had appeared in his or her answer.
§38-5-18. Jury trial in suggestion proceedings; waiver of jury;
right of appeal; costs.
When it is suggested by the judgment creditor in any case of
suggestion that the person suggested has not fully disclosed the
debts or liabilities due by him or her to, or personal property
in his or her possession or under his or her control of, the
judgment debtor at the time of service of the summons, or has not
delivered to the officer the property, or paid the money, for
which he or she was liable, the court shall cause a jury to beimpaneled, without any formal pleadings, to inquire as to such
the debts or liabilities or property, or as to such the payment
or delivery, unless a trial by jury be is waived by the parties,
and if trial by jury be waived, the court shall proceed to hear
and determine the questions at issue. Whether the issues of fact
be found by the court or by a jury, the court shall proceed in
respect to any fact so found, in the same manner as if they had
been confessed by the person suggested, but either party shall be
entitled to a writ of error or an appeal as in other cases. If
the verdict or decision of the court be for the person suggested,
he or she shall have judgment for his or her costs against the
judgment creditor, and if the judgment be against the person
suggested, he or she shall be adjudged liable for the costs of
the suggestion proceeding.
NOTE: The purpose of this bill is to clarify present
confusion among persons regularly served with a summons on a
suggestion filed by a judgment debtor. It defines the moment of
determining the amount of liability to the judgment debtor, or
property of the judgment debtor, that is reached by the
suggestion, as being the time of service of the summons.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.