GARNISHMENT ‑- FEES

GARNISHMENT ‑- FEES

No dismissal fee should be collected upon filing an order dismissing a garnishee defendant alone, but that such a fee should only be collected in garnishment matters when the main action, to which the garnishment is only ancillary, is dismissed.

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                                                              September 13, 1951

Honorable Maloy Sensney
Prosecuting Attorney
Benton County
Prosser, Washington                                                                                                              Cite as:  AGO 51-53 No. 127

Dear Sir:

            This is to acknowledge your letter of September 5, 1951, in which you requested our opinion on the following question, which we quote from your letter:

            "Should we collect a dismissal fee in garnishment cases after the garnishee defendant has appeared and the case is dismissed?"

            Our conclusion may be stated as follows:

            No dismissal fee should be collected upon filing an order dismissing a garnishee defendant alone, but that such a fee should only be collected in garnishment matters when the main action, to which the garnishment is only ancillary, is dismissed.

                                                                     ANALYSIS

            Section 5, chapter 51, Laws of 1951, provides in part as follows:

            "For the entry of judgment or dismissal in all civil actions, with or without costs, three dollars shall be paid if no adverse party has appeared; otherwise six dollars * * *"

             [[Orig. Op. Page 2]]

            From the above it is clear that when a party files an order of dismissal after an appearance has been made by the adverse party, a fee of $6.00 shall be collected.  This fee should be collected whether the garnishment proceedings are involved in the main action or not.  In other words, when the main action is dismissed, the fact that a garnishee defendant appeared has no effect on the clerk's duty to collect the dismissal fee.

            However, in an action wherein garnishment is ancillary to the main action, and the garnishee defendant has appeared and answered, and an order is filed dismissingonly the garnishee defendant without affecting the main action, we are of the opinion that no dismissal fee should be collected.

            Section 5, chapter 51, Laws of 1951, is amendatory of section 1, chapter 56, Laws of 1907 (Rem. Rev. Stat., sec. 497, as applicable to clerk's fees.)

            Under the laws of 1907 no fee was collected for filing a dismissal of a garnishee defendant alone.  We are not inclined to conclude that chapter 51, Laws of 1951, changed forty-four years of procedure unless it appears clear that a change was intended.

            Section 5, chapter 51, Laws of 1951, in amending chapter 56, Laws of 1907, in effect, completely rewrote chapter 56, as applied to clerk's fees.  We feel that it must be assumed that the legislature knew the standing of the law prior to enacting chapter 51, Laws of 1951.  Consequently, when the legislature completely rewrote the law on clerk's fees we feel that if they intended to include garnishee defendant dismissals within the scope of section 5, quoted above, they would have done so in such a manner as to leave no doubts.

            In our opinion, section 5, chapter 51, Laws of 1951, did not effect any change in respect to filing an order dismissing a garnishee defendant only, and accordingly, you are advised that in such instances no fee should be collected.

Very truly yours,

SMITH TROY
Attorney General

ROBERT L. SIMPSON
Assistant Attorney General