Tyson v. Nettler , 43 Ohio App. 3d 132 ( 1987 )

The Massillon Municipal Court found garnishee, Society Bank of Eastern Ohio, N.A. ("bank"), appellant, guilty of civil contempt for failure to properly respond to garnishment proceedings and granted judgment against the bank in the amount of $928.11, the balance in the account of the judgment debtor of garnishor-appellee, on the date the order was received by appellant. The bank appeals, assigning a single error:

"The Massillon Municipal Court erred in finding Society Bank of Eastern Ohio, N.A., in contempt of court for failure to properly answer a garnishment because the defendant and the account were inadequately identified pursuant to R.C. 2716.11."

Plaintiffs-appellees procured default judgment against Ed Nettler, d.b.a. Ed's Auto Sales. Two months later, the judgment creditors-appellees filed multiple garnishments in an effort to satisfy their judgment.

The bank was served with a preprinted form entitled "Affidavit, Order, and Notice of Garnishment and Answer of Garnishee." Several blanks on the form were incomplete, including the addresses of the plaintiffs and defendant, and the docket and the page of the judgment.

At that time, the bank had an account in the name of Ed's Auto Sales, the sole signatory being "Edward R. Netler," not "Ed Nettler."

The bank answered the garnishee portion of the form, returning it to the court. This form provided only for "yes" and "no" answers to the question whether "he had any money, property, or credits other than personal property, or credits other than personal earnings of the defendant under his control and in his possession." The bank crossed out this section, and wrote on the line for "description of property": "We are unable to identify defendants. In order to attach, please reissue with a Social Security Number, address, etc." There was $928.11 in the account when the bank answered as indicated. By the time garnishment was reissued, the account was overdrawn.

After a hearing, the trial court found that the bank was garnished when the order was received by its employee in charge of garnishments; that the garnishment was against "Ed Nettler dba Ed's Auto Sales," who had a checking account at Society Bank in the name of "Ed's Auto Sales," and the only authorized signature on said account was "Edward R. Netler." (The trial court incorrectly identified the authorized signature as Nettler.)

The court further found that there were no other accounts at the bank in the name of "Ed's Auto Sales" and that the garnishee failed to answer properly the garnishment.

The garnishment statute, R.C. 2716.11, provides, in relevant part:

"A proceeding for garnishment of property, other than personal earnings, may be commenced after a judgment has been obtained by a judgment creditor by the filing of an affidavit in writing made by the judgment creditor, his agent, or attorney setting forth:

"(A) The name of the judgment debtor * * *[.]"

The garnishment fails to name a person who has an account at appellant bank.

At the hearing, it became clear that Edward R. Netler was the same person as Ed Nettler, the person against whom judgment had been procured and against whose account the garnishment was directed.

The question becomes: As between a garnishing judgment creditor and a stakeholder bank, who bears the risk of nondiscovery of an account because of a misspelled surname?

Appellant argues that modern commercial transactions require specificity and that the sheer volume of accounts, coupled with the necessary computer identification and retrieval, further impelled by confidentiality laws, require accurate spelling and account description.¹ We conclude that where the judgment creditor misspells the surname and fails to provide additional identifying information, the risk of nonidentification of an account held by the judgment debtor, in fact, befalls him who creates the dilemma in the first instance, i.e., the judgment creditor.

Appellant urges that this is a case of first impression in Ohio. We find no Ohio cases on point. See Great Western Beef Co. v. Canton Steak, Inc. (Nov. 3, 1986), Stark App. No. CA-6903, unreported, speaking to issues of identity and sanctity of bank accounts. See, also, Redisco v. Laredo Mopac Emp. Credit Union (Tex.App. 1974), 516 S.W.2d 197, 199:

"It is required that the garnishment writ give an accurate description of the debtor by correctly giving his name, and failing in this respect, the garnishee can claim to be relieved of responsibility to the garnishor if the garnishor does not show that the garnishee otherwise had knowledge of the identity of the debtor."

The single assignment of error is sustained, the judgment of the Massillon Municipal Court is reversed and, pursuant to App. R. 12(B), final judgment is entered in favor of garnishee-appellant, Society Bank of Eastern Ohio, N.A.

Judgment reversed.

WISE, J., concurs.

TURPIN, J., dissents.

¹ The appellant bank had some two hundred thousand demand accounts posted in the bank branch in question.