Note on risk of “paying twice” in Harris v. Balk, 198 U.S. 215 (1905)

Henry H. Perritt, Jr.

In our discussion on 26 August, several of you were concerned about the possibility that the garnishee in situations like Harris v. Balk or in our hypothetical would have to “pay twice”—turn over money or other property in response to the writ of garnishment, and still have to pay or return property to the granishee’s creditor (the defendant or judgment debtor in the underlying action).

Conflicting interests exist in these situations. The garnishee does not want to pay twice. The defendant/judgment creditor does not want to lose the property represented by the debt owed by the garnishee—especially not without due process of law.

In Harris v. Balk, the garnishee admitted that he owed the potential defendant $180, and consented to entry of a judgment against him in Maryland in the garnishment action. The original writ of garnishment was accompanied by a summons and declaration (similar to a complaint) against Balk (the North Carolina defendant), which was delivered to the Sheriff and nailed to the courthouse door in Maryland.

It was the Maryland judgment that the Supreme Court held must be accorded full faith and credit in Balk’s North Carolina action in North Carolina.

But alarm bells should be ringing in your head, based on Pennoyer and Fuentes: Balk’s property, represented by the debt, was taken. Did he receive due process? Why would posting the summons and complaint against him on a courthouse door in Maryland be any better notice or service than the publication in Pennoyer? The Supreme Court did not rely on the courthouse-door posting in Maryland. It relied on the fact that, under Maryland law, Balk had a year and a day to context his liability to Epstein, the Maryland garnishor. He had notice of the garnishment within that period because he (Balk) sued Harris as soon as Harris returned to North Carolina and Harris notified Balk of the garnishment then. But Balk presented no defense to Epstein’s claim against him. So he had notice and an opportunity to be heard in the underlying Epstein v. Balk claim.

Harris, the garnishee, had a duty to give notice of the garnishment and Epstein’s claim against Balk to Balk, 198 U.S. at 227, and an accompanying duty to present any defenses Harris might have in the garnishment proceeding. Id. “As he was absolutely without defense, there was no reason why he should not consent to a judgment impounding the debt . . . . There was no merely voluntary payment . . . .” Id.

By implication, if a garnishee breaches the duty to present defenses, or to give notice to the garnishee’s creditor, the garnishee would have to pay twice, and the garnishee’s creditor would not be deprived of property represented by the debt.