CHUUK STATE SUPREME COURT
TRIAL DIVISION
Cite as Kama v. Chuuk ,
9 FSM Intrm. 496 (Chuuk S. Ct. Tr. 1999)

[9 FSM Intrm. 496]

MINORU KAMA,
Plaintiff,

vs.

CHUUK STATE,
Defendant.

CSSC CA NO. 129-90

MODIFICATION OF ORDER IN AID OF JUDGMENT
AND SETTING ASIDE JUDGMENT

Wanis R. Simina
Associate Justice

Decided:  October 18, 1999

APPEARANCES:
For the Plaintiff:          Stephen V. Finnen, Esq.
                                     Law Offices of Saimon & Associates
                                     P.O. Box 1450
                                     Kolonia, Pohnpei FM 96941

For the Defendant:     Joses Gallen, Esq.
                                     Acting Attorney General
                                     Office of the Chuuk Attorney General
                                     P.O. Box 189
                                     Weno, Chuuk FM 96942

*    *    *    *

HEADNOTES
Attachment and Execution; Courts
     Chuuk state courts have the power to issue all writs for equitable and legal relief, except the power of attachment, execution and garnishment of public property.  Kama v. Chuuk, 9 FSM Intrm. 496, 497 (Chk. S. Ct. Tr. 1999).

Attachment and Execution; Debtors' and Creditors' Rights
     The only purpose of statutes authorizing orders in aid of judgment is to force the payment of a judgment and to provide means to collect a money judgment, which is the same as proceedings for attachment, garnishment or execution.  Kama v. Chuuk, 9 FSM Intrm. 496, 498 (Chk. S. Ct. Tr. 1999).

Attachment and Execution; Sovereign Immunity
     The Trust Territory Code provisions for orders in aid of judgment are not available as against Chuuk because, when it barred the courts' power of attachment, execution and garnishment of public property, the clear legislative intent was to supersede or repeal all provisions of the Trust Territory

[9 FSM Intrm. 497]

Code, Title 8 insofar as they allowed seizure of Chuuk state property.  Kama v. Chuuk, 9 FSM Intrm. 496, 498 (Chk. S. Ct. Tr. 1999).

Attachment and Execution; Debtors' and Creditors' Rights
     Historically, orders in aid of judgment and orders in aid of execution serve the same purpose and the terms are used interchangeably.  Their purpose is to provide a means of discovery to inquire into the assets and ability of a judgment debtor to pay a judgment.  Kama v. Chuuk, 9 FSM Intrm. 496, 498 (Chk. S. Ct. Tr. 1999).

Attachment and Execution; Sovereign Immunity
     Proceedings in aid of a judgment are supplementary proceedings to enforce a judgment, the same as attachment, execution and garnishment, and as against Chuuk State public property, are prohibited by 4 of the Chuuk Judiciary Act.  Kama v. Chuuk, 9 FSM Intrm. 496, 498 (Chk. S. Ct. Tr. 1999).

Judgments; Judgments ) Default Judgments; Settlement
     Default judgments and stipulated or agreed judgments against the State of Chuuk are to be subjected to close scrutiny by the court.  Kama v. Chuuk, 9 FSM Intrm. 496, 499 (Chk. S. Ct. Tr. 1999).

Civil Procedure; Judgments
     Before the Chuuk State Supreme Court can enter a judgment against the state's public funds pursuant to an offer and acceptance of judgment under Civil Procedure Rule 68, a hearing for the purpose of having the benefit of evidence or hearing testimony as to the value of the plaintiff's claim, or the validity thereof, is an absolute necessity.  Kama v. Chuuk, 9 FSM Intrm. 496, 499 (Chk. S. Ct. Tr. 1999).
 
Judgments ) Relief from Judgment
     The Chuuk State Supreme Court may set aside any judgment for fraud upon the court, or if the judgment is void as in a case where the judgment is against public policy, or if it is no longer equitable that the judgment should have prospective application, or for any other reason justifying relief from the operation of the judgment.  Kama v. Chuuk, 9 FSM Intrm. 496, 499-500 (Chk. S. Ct. Tr. 1999).

*    *    *    *

COURT'S OPINION
WANIS R. SIMINA, Associate Justice:
     This case comes before the Court Sua Sponte, for the purpose of modifying, pursuant to 8 TTC 57, the Order in Aid of Judgment heretofore entered by a previously assigned Justice on July 7, 1999.  The Order in Aid of a Judgment entered on July 7, 1999 concludes that the Chuuk State Supreme Court has jurisdiction to enter an order that a judgment be paid from public funds of Chuuk State.  This conclusion clearly conflicts with the provisions of 4, Judiciary Act of 1990, which provides in part as follows:  "Section 4. General Powers of State and Municipal Courts:  Each court shall have power to issue all writs for equitable and legal relief, except the power of attachment, execution and garnishment of public property . . . ."  Chk. S.L. No. 190-08, 4 (emphasis added).

     The only authority for the application of an Order in Aid of Judgment is found in 8 TTC 55, which provides in part as follows:

At any time after a finding for the payment of money by one party to another, and before

[9 FSM Intrm. 498]

any judgment based thereon has been satisfied in full, either party may apply to the court for an order in aid of judgment.  Thereupon the court, after notice to the opposite party, shall hold a hearing on the question of the debtor's ability to pay and determine the fastest manner in which the debtor can reasonably pay a judgment based on the finding.

Id. (emphasis added).

     8 TTC 56 provides in part:  "Upon having heard the evidence . . . the court shall make such order in aid of judgment as is just for the payment of any judgment based on the finding."  Id. (emphasis added).

     The only purpose of the foregoing code sections is to force the payment of a judgment.  Additional force is provided in 8 TTC 58, which allows the court to order a debtor to jail for six months for contempt in the event the debtor fails to comply with the order in aid of judgment.  There is no other logical reason for these code sections than to provide means to collect a money judgment, the same as proceedings for attachment, garnishment or execution all of which are prohibited by 4, Judiciary Act of 1990.

     There is additional authority that the Trust Territory Code sections providing for orders in aid of judgments are not available as against Chuuk State in that the clear legislative intent of 4, supra, is to supersede or repeal all provisions of Title 8 of the Trust Territory Code in so far as the same are seen to allow seizure of Chuuk State property.

     Historically, orders in aid of judgment and orders in aid of execution serve the same purpose and the terms are used interchangeably.  Their purpose is to provide a means of discovery to inquire into the assets and ability of a judgment debtor to pay a judgment.  This is the view of the High Court in Rilometo v. Lanlobar, 4 TTR 172, 178 (Marsh. 1968), where the court stated:  "A proceeding under Section 289 [now Title 8, 55] is one to determine a judgment debtor's ability to pay . . . ."

     That orders in aid of judgment and aid of execution are the same is further demonstrated by Rule 69(a), CSSC Rules of Civil Procedure, which states as follows:

EXECUTION
(a) In general.  Process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise.  The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with these rules and the laws of the State of Chuuk.  In aid of the judgment or execution, the judgment creditor . . . may obtain discovery from any person, including the judgment debtor, in the manner provided in these rules.
 
Chk. Civ. R. 69(a) (emphasis added).

     These supplementary proceedings also "take various forms, variously denominated as proceedings in aid of execution, garnishment after judgment, garnishee execution, attachment execution, and income execution."  30 Am. Jur. 2d Executions 774 (1969).  Also, in 30 Am. Jur. 2d Executions 775 (1969), it is said that "A supplementary proceeding is as much a means of enforcing a judgment as the ordinary writ of execution."

     Thus, it is clearly shown by the foregoing that proceedings in aid of a judgment are supplementary proceedings to enforce a judgment the same as "attachment, execution and

[9 FSM Intrm. 499]

garnishment" and as against Chuuk State public property, are prohibited by 4 of the Judiciary Act.

     Additional authority that an order in aid of judgment is not available in this case is found in 33 C.J.S. Executions 35(a) (1942) (footnote omitted) which states as follows:

It is considered general doctrine needing no statutory sanction that the land and property of the state or its agencies or political subdivisions is not subject to seizure under general execution in the absence of statute expressly granting such right, statutes sometimes so providing, and it has been said that, as a matter of public policy, general statutory provisions making property subject to execution are construed to apply only to the property of private persons and corporations, and not to that of public corporations or bodies politic.

     In Vaughn v. Condon, 199 P. 545 (Cal. 1921) the issue was whether garnishment could be had against a municipality.  The Court held:  "As a matter of public policy, general provisions making property subject to execution, garnishment, or liens are construed to apply only to property of private persons and corporations, and not to that of public corporations or bodies politic."  Id. at 545.

     In the Vaughn case, supra, it was argued that the case was a garnishment of funds held in trust and outside the general rule prohibiting execution against government property.  In response, the court said:  "We see no reason for a different rule in such case, when we consider the reasons for the rule of public policy herein announced."  Id. at 546.

     The Vaughn case, supra, further held that public funds are pecuniary interests of great magnitude, and vast numbers of human beings are dependent on public funds for their "security of life and property."  "To permit the great public duties of [government] to be imperfectly performed, in order that individuals may the better collect their private debts, would be to pervert the great objects" for which the government exists.  Id.

     Previous cases of the Trial Division of the Chuuk State Supreme Court have moved toward greater protection of the Chuuk State Treasury by requiring that default judgments and stipulated or agreed judgments against the State be subjected to close scrutiny by the Court.  See Mark v. Chuuk, 8 FSM Intrm. 582 (Chk. S. Ct. Tr. 1998); Jessy v. Chuuk, CSSC CA No. 114-98 (Apr. 27, 1999); Osi v. Chuuk, 8 FSM Intrm. 565 (Chk. S. Ct. Tr. 1998); Andrew v. Chuuk, CSSC CA No. 210-96 (Jan. 26, 1998); Sipia v. Chuuk, 8 FSM Intrm. 557 (Chk. S. Ct. Tr. 1998); Kinemary v. Chuuk, CSSC CA No. 94-99 (Oct. 6, 1999).

     Based on the previous decisions of the Chuuk State Supreme Court Trial Division, and the legislative intent of protecting public funds by the enactment of 4 of the Judiciary Act of 1990 and as a matter of vital public interest and public policy, the Order in Aid of Judgment heretofore entered in this case on July 7, 1999 is due to be modified to the extent indicated above.

     A review of the file in this case reveals that judgment was entered against Chuuk State pursuant to an offer and acceptance of judgment under Rule 68, CSSC Rules of Civil Procedure, without the Court having the benefit of evidence or hearing testimony as to the value of the Plaintiff's claim or the validity thereof.  A hearing for this purpose is an absolute necessity under the above analysis before judgment against the public funds of Chuuk State can be had.

     Rule 60(b)(3) CSSC Rules of Civil Procedure, gives this Court authority to set aside any judgment for fraud upon the Court.  Also, Subsection (b)(4) authorizes the same relief if the judgment is void as in a case where the judgment is against public policy.  Further, Subsection (b)(5) states that if "it is no

[9 FSM Intrm. 500]

longer equitable that the judgment should have prospective application" the Court has jurisdiction to set it aside.  Still Further, Subsection (b)(6) gives the Court authority to set aside a judgment for "any other reason justifying relief from the operation of the judgment."

     Based on the foregoing, the Order in Aid of Judgment entered in this case on July 7, 1999 is due to be modified to delete any and all reference to the enforcement of the judgment entered by the court against Chuuk State on May 17, 1994, and it is so ordered.

Further ordered that the Judgment entered by the Court on May 17, 1994, against Chuuk State in the amount of $80,000.00 is set aside and held for naught, and further ordered that the case be set for trial on the merits at the request and notice by either party.
                                                                                                                                                                                                                                                                                                           
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