AGO 1953 No. 97 - Jul 18 1953
UNIFORM ENFORCEMENT OF FOREIGN JUDGMENTS ‑- COUNTY CLERKS ‑- REGISTRATION OF FOREIGN JUDGMENTS ‑- ATTACHMENT BONDS ‑- AFFIDAVIT FOR ATTACHMENT ‑- JUDGMENT FEES ‑- NOTICE OF REGISTRATION
1. An application for registering a foreign judgment does not require a court order as a condition precedent to registration.
2. Such registration should not be noted on the execution docket.
3. A levy should not issue on property of the judgment debtor prior to final judgment in this state unless the plaintiff files an attachment bond together with an affidavit for attachment.
4. Notice of registering the foreign judgment should be prepared by the attorney for the judgment creditor and mailed by the county clerk.
5. A judgment fee should not be paid in such an action before it is established whether or not the action will be contested.
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July 18, 1953
Honorable R. DeWitt Jones
301 Court House
Vancouver, Washington Cite as: AGO 53-55 No. 97
We have your letter in which you prepound a series of questions having to do with the Uniform Enforcement of Foreign Judgments Act, chapter 191, Laws of 1953. You have asked for our opinion on the following questions:
1. Does an order registering the judgment follow the application?
2. Will such an order be noted on the execution docket even though entered prior to the final judgment?
3. Under section 6 of the act, if jurisdiction of the judgment debtor has been obtained, must there be a bond filed before issuing a levy on the debtor's property? If so, would the clerk require an attachment bond in all execution proceedings prior to final judgment?
4. Should the clerk require an affidavit before issuing a levy under the provisions of section 6?
5. Should the clerk collect the judgment fee when the foreign judgment is registered, or only at the time the order is entered and the judgment becomes final?
6. Should the county clerk be responsible for preparing the notice required under section 5, as well as the affidavit of mailing, or should these be prepared by the attorney for the judgment creditor?
Our conclusions may be summarized as follows:
[[Orig. Op. Page 2]]
Questions numbered 1 and 2 are answered in the negative; questions 3 and 4 require an affirmative answer. Question 5 may be answered as follows: A judgment fee should not be paid in such an action before it is established whether or not the action will be contested. On question 6, we conclude that the notice of registering the foreign judgment should be prepared by the attorney for the judgment creditor and mailed by the county clerk.
1. An application for registering a foreign judgment does not require a court order as a condition precedent to registration. Section 1, chapter 191, Laws of 1953, contains this definition:
"'Register' means to file a foreign judgment in a court of this state."
Although section 3 of the Uniform act uses the terms "a verified petition for registration" and "prayer that the judgment be registered" the statute is silent as to the necessity of a court order.
It is our conclusion that the legislature intended that the registration of a foreign judgment is to be regarded as a ministerial act to be performed by the clerk of the registering court.
2. RCW 4.64.080 provides for entries in the county clerk's execution docket. This section requires the clerk to enter in the order in which they occur all the proceedingssubsequent to the judgment in the case.
It is our conclusion that no entry should be made in the execution docket until the foreign judgment has been reduced to a final judgment in this state.
3. A levy should not issue on property of the defendant prior to final judgment unless the plaintiff files an attachment bond. We do not believe it was the intention of the legislature, nor of the commissioners who drafted the Uniform act, to give to a judgment of a sister state the same legal effect in this state, prior to the time it is reduced to judgment here, as a domestic judgment. In 9 Uniform Laws Annotated 380, the Commissioner's note to section 6 of the act reads in part as follows:
"The right to levy on property of the judgment debtor at once after registration of the judgment, without waiting until the registered judgment becomes a final judgment of the [[Orig. Op. Page 3]] state of registration, can operate to give to judgment creditors a type of relief almost as efficient as would be the case if execution could be issued directly on the foreign judgment. The procedure is substantially similar to what is variously known as attachment, * * * garnishment, * * * and the like. * * *"
Hence, we conclude that an attachment bond must be filed in order to validate a levy prior to final judgment.
4. For the same reasons we conclude that an affidavit for a writ of attachment pursuant to RCW 7.12.020, must necessarily be filed together with the attachment bond if a levy is to be made on property of the judgment debtor prior to final judgment in this state.
5. In this type of action a judgment fee should not be paid before it is established whether or not the action will be contested. RCW 36.18.020 provides for a higher judgment fee in a contested matter.
6. Notice of registering the foreign judgment should be prepared by the attorney for the judgment creditor and mailed by the clerk of the registering court. The notice required in section 5 of the act, in the absence of personal jurisdiction, is designed to serve a dual function. It is calculated to notify the judgment debtor of the registration, and it also lays the foundation upon which a new judgment quasi in rem can validly be entered against the property of the judgment debtor levied upon in this state.
We conclude that the burden of properly laying this foundation should rest upon the attorney for the plaintiff rather than the clerk of the court.
In 50 C.J.S. 495 and 496, Judgments, section 892, the general subject of the enforcement of judgments of sister states is discussed as follows:
"* * * The enforcement in one state of a judgment of another state is in pursuance of the constitutional provision [Article IV, section 1, United States Constitution] for giving 'full faith and credit' to such judgments, which requires the states to afford like means of enforcing foreign and domestic judgments, but such provision relates only [[Orig. Op. Page 4]] to the effect of such judgments as evidence or as a bar to further litigation, and in order to proceed for the collection or enforcement of a judgment recovered in another state the creditor must first sue on it in the state where he wishes to enforce it and recover a judgment on it."
RCW 4.16.040 provides that actions on foreign judgments must be commenced within six years. RCW 5.44.020 provides for according full faith and credit to foreign judgments for debt. The Uniform act, however, is much broader in scope than this. Our court has discussed the general problem in Miller v. Miller, 90 Wash. 333 and Rubin v. Dale, 156 Wash. 676.
The method of authenticating judicial proceedings has been prescribed by Congress by its act of May 26, 1790. 28 U.S.C.A. 1738, § 687.
Very truly yours,
Assistant Attorney General