COMMITTEE SUBSTITUTE

FOR

H. B. 2596
(By Delegates Williams, Carper,

Rutledge and Ashley)


(Originating in the House Committee on the Judiciary)


[March 31, 1993]


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, all 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, all 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 the person's possession or under his the person's 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 the person is liable, at the time of service 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 the person 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, however, That the right of a holder in due course, of a negotiable warehouse receipt, bill of lading, or other negotiable instrument for any property so delivered, shall not be impaired by such thedelivery. 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 the person's possession or under his the person's control any personal property belonging to the judgment debtor, and that he the person 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 the judgment debtor's 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 the person to pay the amount so due from him the person and to deliver such the property, or any part of such the money or property, to such person as the court may designate as receiver: Provided, however, That if it shall appear from the answer of the person suggested, that his the person's 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 upon condition 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: Providedfurther, however, 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 such person 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 the person 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 the person to, or personal property in his the person's possession or under his the person's 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 the person's 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 the person to, or personal property in his the person's possession or under his the person's 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 the person was liable, the court shall cause a jury to be impaneled, 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 courtshall 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 the person shall have judgment for his the person's costs against the judgment creditor, and if the judgment be against the person suggested, he the person shall be adjudged liable for the costs of the suggestion proceeding.