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Session of 2000
          HOUSE BILL No. 2957           By Representatives Flora, Hermes, Hutchins, Jenkins, Kirk, Kuether,           Mays, Nichols and Toelkes           2-9          

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11             AN  ACT concerning civil procedure for limited actions; relating to gar-
12             nishment; amending K.S.A. 61-2005 and 61-2006 and repealing the
13             existing sections.
14      
15       Be it enacted by the Legislature of the State of Kansas:
16             Section  1. K.S.A. 61-2005 is hereby amended to read as follows: 61-
17       2005. (a) Form of garnishment order. An order of garnishment, issued
18       independently of an attachment for the purpose of attaching earnings or
19       for the purpose of attaching other property of the defendant, and the
20       answer of the garnishee are declared to be sufficient if substantially in
21       compliance with the appropriate form prescribed in the appendix to this
22       act. If an order of garnishment is issued at the written direction of the
23       party entitled to enforce the judgment, pursuant to K.S.A. 61-2004 and
24       amendments thereto, for the purpose of enforcing (1) an order of any
25       court for the support of any person, (2) an order of any court of bank-
26       ruptcy under chapter XIII of the federal bankruptcy act or (3) a debt due
27       for any state or federal tax, the clerk of the court shall cause such purpose
28       to be clearly stated on the order of garnishment and the accompanying
29       garnishee's answer form immediately below the caption thereof. If the
30       garnishment is to enforce a court order for the support of any person, the
31       garnishment shall not exceed 50% of an individual's disposable earnings
32       unless the person seeking the garnishment specifies to the garnishee a
33       greater percent to be withheld, as authorized by subsection (g) of K.S.A.
34       60-2310 and amendments thereto.
35             (b) Service and return. The order of garnishment shall be served on
36       the garnishee, together with two copies of the appropriate form for the
37       garnishee's answer prescribed in the appendix to this act, and returned
38       by the officer making service in the same manner as an order of attach-
39       ment. If the order is served prior to a judgment on the plaintiff's claim,
40       the order shall also be served on the defendant, if the defendant can be
41       found, except that the order shall not be served on the defendant until
42       after service has been made on the garnishee. Failure to serve the de-
43       fendant shall not relieve the garnishee from liability under the order.

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  1             (c) Effect. An order of garnishment issued for the purpose of attach-
  2       ing any property, funds, credits or other indebtedness belonging to or
  3       owing the judgment debtor, other than earnings, shall have the effect of
  4       attaching (1) all such personal property of the defendant which is in the
  5       possession or under the control of the garnishee, and all such credits and
  6       indebtedness due from the garnishee to the defendant at the time of
  7       service of the order and (2) all such personal property coming into the
  8       possession or control of the garnishee and belonging to the defendant,
  9       and all such credits and indebtedness becoming due to the defendant
10       between the time of the serving of the order of garnishment and the time
11       of the signing of the answer of the garnishee, except that where the gar-
12       nishee is an executor or administrator of an estate where the defendant
13       is or may become a legatee or distributee thereof, the order of garnish-
14       ment shall have the effect of attaching and creating a first and prior lien
15       upon any property or funds of such estate to which the defendant is
16       entitled upon distribution of the estate, and such garnishee shall be pro-
17       hibited from paying over to the defendant any of such property or funds
18       until so ordered by the court from which the order of garnishment was
19       issued.
20             An order of garnishment issued for the purpose of attaching earnings
21       of the defendant shall have the effect of attaching the nonexempt portion
22       of the defendant's earnings for any pay period or periods which end dur-
23       ing the 30-day period beginning the day in which the order is served all
24       pay periods which end while the order is in effect. The order shall remain
25       in effect until either of the following occur, whichever is sooner: (1) The
26       judgment is paid; or (2) the garnishment is released. Nonexempt earnings
27       are earnings which are not exempt from wage garnishment pursuant to
28       K.S.A. 60-2310 and amendments thereto, and computation thereof for
29       any pay period or periods shall be made in accordance with the directions
30       accompanying the garnishee's answer form served with the order of
31       garnishment.
32             (d) Administrative fee. From income due the defendant, the gar-
33       nishee may withhold and retain to defray the garnishee's costs an admin-
34       istrative fee of $10 for each pay period for which income is withheld, not
35       to exceed $20 for each month for which income is withheld, whichever
36       is less. Such administrative fee shall be in addition to the amount required
37       to be withheld under the order for garnishment. If the addition of this
38       fee causes the total amount withheld to exceed the restrictions imposed
39       by subsection (b) of K.S.A. 60-2310, and amendments thereto, the fee
40       shall be deducted from the amount withheld.
41             Sec.  2. K.S.A. 61-2006 is hereby amended to read as follows: 61-
42       2006. (a) Within 10 days after service upon a garnishee of an order of
43       garnishment issued for the purpose of attaching any property, funds, cred-

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  1       its or indebtedness belonging to or owing the defendant, other than earn-
  2       ings, and within 40 days after service upon a garnishee of an order of
  3       garnishment issued for the purpose of attaching any earnings due and
  4       owing the defendant, the garnishee shall file an answer thereto with the
  5       clerk of the court stating the facts with respect to the demands of the
  6       order. If the garnishment is for the purpose of attaching earnings and the
  7       defendant is not employed by the garnishee or has terminated employ-
  8       ment with the garnishee, the answer is not required to be verified. Oth-
  9       erwise, the answer shall be verified. If the office or principal place of
10       business of the garnishee is outside the county where the court is situated,
11       the garnishee shall have 40 days to file an answer in all cases. The answer
12       of the garnishee may be on the appropriate form prescribed in the ap-
13       pendix to this act, but in no event shall the garnishee's answer contain
14       less than that prescribed in the form.
15             The clerk shall cause a copy of the answer to be mailed promptly to
16       the plaintiff and to the defendant at the address to which summons was
17       directed. The garnishee shall complete the answer in accordance with the
18       instructions accompanying the answer form for all pay periods ending
19       during the month and send the completed answer to each judgment cred-
20       itor and judgment debtor at the addresses listed on the answer form. The
21       garnishee shall designate on the answer in the space provided on the
22       answer form the name and case number for each judgment creditor who
23       has a garnishment order in effect for the same debtor at the end of each
24       month and the amount that is due each judgment creditor under the
25       garnishment in accordance with the instructions accompanying the an-
26       swer form. Only one answer needs to be completed for each judgment
27       debtor by the garnishee and the garnishee make duplicate the completed
28       answer in any manner the garnishee desires for distribution to each judg-
29       ment creditor and judgment debtor. The answer shall be supported by
30       unsworn declaration in the manner set forth on the answer form. Within
31       10 days after the filing of the answer, the plaintiff or defendant, or both
32       of them, may reply thereto, controverting any statement therein.
33             (b) If the garnishee fails to answer within the time and manner herein
34       specified, the court may grant judgment against garnishee for the amount
35       of the plaintiff's judgment or claim against the defendant, but if the claim
36       of the plaintiff has not been reduced to judgment, the liability of the
37       garnishee shall be limited to the judgment ultimately rendered against
38       the defendant, but the judgment may be taken only upon written motion
39       and notice given in accordance with subsection (d) of K.S.A. 60-206 and
40       amendments thereto. If the garnishee answers as required herein and no
41       reply thereto is filed within 10 days, the allegations of the answers are
42       deemed to be confessed. If a reply is filed as herein provided, the court
43       shall try the issues joined, the burden being upon the party filing the

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  1       reply to disprove the sworn statements of the answer, except that the
  2       garnishee shall have the burden of proving offsets or indebtedness
  3       claimed to be due from the defendant to the garnishee, or liens asserted
  4       by the garnishee against personal property of the defendant.
  5             (c) This subsection shall apply if the garnishment is to attach earnings
  6       of the judgment debtor. If no reply is made to the answer of garnishee
  7       within 10 days following the date the garnishee has completed the answer,
  8       the garnishee shall promptly thereafter pay the earnings withheld as in-
  9       dicated on the answer to all judgment creditors designated on the answer
10       in the amount due each as indicated on the answer, unless the garnishee
11       receives prior to such payment an order of the court to the contrary. If
12       any judgment creditor receives more than they are entitled to, that judg-
13       ment creditor shall promptly pay the excess amount pro-rata to the other
14       judgment creditors designated on the answer, or if no such other judgment
15       creditors are designated, the judgment creditor shall promptly pay the
16       excess amount to the judgment debtor. 
17       Sec.  3. K.S.A. 61-2005 and 61-2006 are hereby repealed.
18        Sec.  4. This act shall take effect and be in force from and after its
19       publication in the statute book.