RICHARD A. HENNING, PETITIONER,
v.
HONORABLE ROBERT T. SHAFER, JR., RESPONDENT
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A debtor sought certiorari review of a garnishment order that required the garnishee to pay $429.94 to the garnishor. The court treated the petition as an appeal of the final garnishment judgment and affirmed, finding the debtor failed to comply with statutory exemption requirements.
The court affirmed the garnishment order, holding that the petitioner failed to comply with Florida Statutes § 222.12's statutory requirements for claiming an exemption from garnishment. The requirements mandate that a person make an oath before the officer who issued the process, allege the money is due for personal labor and services, and allege that he is the head of a family. The court found the trial court did not err in determining that $429.94 (25% of $1,719.77) was subject to garnishment under federal law.
[1] A debtor has an interest in an action between a garnishor and a garnishee and is entitled to appeal the judgment in that action.
[2] A writ of certiorari is not the proper procedural vehicle to challenge a trial court's final order on a motion for writ of garnishment; an appeal is the appropriate remed…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Although chapter 77 does not specifically address situations where a debtor wishes to challenge the judgment on the action between the garnishor and the garnishee, the debtor has an interest in the action and is entitled to appeal that judgment.”
Establishes that a debtor has standing to appeal a garnishment judgment even though the action is between the garnishor and garnishee.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe garnishor obtained a writ of garnishment against the garnishee for money owed to the debtor/petitioner. The trial court found the garnishee was in…
The full statement of facts, procedural history, and disposition for this case are member content.
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RYDER, Chief Judge.
The defendant/debtor, pro se, petitioned for a writ of certiorari to review a final order on a garnishor’s motion for writ of garnishment.
The petitioner should have appealed the trial court’s order which ordered the garnishor to recover $429.94 from the garnishee. Section 77.081, Florida Statutes (1983), refers to a default judgment against a garnishee as a final judgment. Section 77.083 provides for judgment to be entered against the garnishee after his answer or after trial. Section 77.27 provides that the plaintiff must pay the attorney’s fee before he can take an appeal where the writ is dismissed or where the plaintiff failed to sustain his claim. Although chapter 77 does not specifically address situations where a debtor wishes to challenge the judgment on the action between the gar-nishor and the garnishee, the debtor has an interest in the action and is entitled to appeal that judgment. See International Travel Card, Inc. v. R.C. Hasler, Inc., 411 So. 2d 215, 216 (Fla. 1st DCA 1982). However, we treat this case as an appeal of the final judgment and affirm. See State v. Johnson, 306 So. 2d 102, 103 (Fla.1974).
Section 222.12, Florida Statutes (1983), provides for an exemption from attachment for money due for labor and services where a person (1) makes an oath before the officer who issued the process; (2) that the money attached is due for personal labor and services; and (3) that he is the head of a family. The party who sued out the process must then deny these allegations under oath within two days after service of the notice or the process is returned and all proceedings cease.
In petitioner’s July 1984 affidavit for dissolution of writ of garnishment, he alleged that the money owed him from the garnishee was for personal services, wages and commissions. He did not allege that he was the head of a family, nor is there any evidence that he made this allegation under oath before the officer who issued the writ of garnishment. Petitioner included an “Affidavit in Support of Petition for Writ of Certiorari and Exemption” with his petition for certiorari, in which he cites, inter alia, section 222.12, Florida Statutes, for authority. Once again, there is no evidence that petitioner presented these allegations under oath to the officer who issued the process. Neither affidavit fulfilled the statutory requirements of section 222.12 for claiming an exemption.
The court found that the garnishee was indebted to appellant in the amount of $1,719.77 and that 25% of that amount, $429.94, was subject to garnishment under 15 U.S.C.A. § 1673(a)(1). The court did not err, therefore, we affirm.
GRIMES, J., and BOARDMAN, EDWARD F. (Ret.), J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hill v. Haywood, 735 So. 2d 539 (Fla. 2d DCA 1999)…arnished is compensation for personal labor and services, and b) that the garnishee is the “head of family.” The garnishor then has two days from the date of service to deny the allegations by contravening affidavit. See § 222.12; Henning v. Shafer, 465 So. 2d 629 (Fla. 2d DCA 1985). Should the garnishor fail to timely file a sworn statement disputing facts alleged to support the creditor’s exemption, all proceedings under the writ must cease. Id. at 629. See also Miami Herald Pub. Co. v. Payne, 358 So. 2d 54…
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The Cadle Co. v. G & G Assocs., 737 So. 2d 1136 (Fla. 4th DCA 1999)…for Cadle to file an affidavit opposing the exemption. Since Grieco failed to raise an exemption in the manner required by the statute, the trial court erred in dissolving the continuing writ. [*1139] This result is in accord with Henning v. Shafer, 465 So. 2d 629 (Fla. 2d DCA 1985). There the debtor challenged a trial court order allowing garnishment. The second district affirmed, ruling that the debtor’s section 222.12 affidavit was deficient in two respects; it failed to allege that he was the head of a fa…
Authorities Cited
- State v. Zebedee Johnson, Jr., 306 So. 2d 102 (Fla. 1974)
- Int'l Travel Card, Inc. v. R. C. Hasler, Inc., 411 So. 2d 215 (Fla. 1st DCA 1982)