Request By:
Mr. William R. Mapother
Mapother and Mapother
160 Legal Arts Building
200 South Seventh Street
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Elizabeth E. Blackford, Assistant Attorney General
You have written to ask whether KRS 425.501 mandates the filing of a new affidavit for each wage garnishment issued to the same employer against a judgment debtor. If the answer to this question is yes, you have asked whether it would be acceptable to file a photocopy of the initial affidavit in satisfaction of that requirement for subsequent garnishments in a series. Simply put, KRS 425.501 does require the filing of an affidavit as a condition precedent to the issuance of each order of garnishment. Furthermore, pursuant to the provisions of KRS 425.501 and CR 43.13, the affidavit must be an original rather than a photocopy.
KRS 425.501(1) provides in part:
". . . Any person in whose favor a final judgment in personam has been entered in any court of record of this state may, upon the filing of an affidavit by him or his agent or attorney in the office of the clerk of the court in which the judgment was entered, and in the same cause in which said judgment was obtained showing the date of the judgment and the amount due thereon, and that one or more named persons hold property belonging to, or are indebted to, the judgment debtor, obtain an order of garnishment directed to the sheriff, . . . requiring him to summon the garnishees named in the affidavit to answer in the manner and at the time required for an answer by the Rules of Civil Procedure, and to make due return thereof." (Emphasis added.)
KRS 425.501(6) provides:
"Subsequent orders of garnishment against the same . . . garnishees may be issued in the same manner until the judgment is satisfied." (Emphasis added.)
Pursuant to this language, filing an affidavit is a prerequisite to issuance of subsequent orders of garnishment. Further, it is the opinion of this office that each affidavit must be an original, for KRS 425.501(1) requires that the affidavit state the amount due on the judgment. If previous garnishments have served to reduce the original amount due on the judgment, it is obvious that the initial affidavit filed in support of the initial order of garnishment would not accurately reflect the amount due on the judgment for subsequent garnishments. If the amount due has not yet been reduced by payment pursuant to prior orders of garnishment, the question becomes somewhat different but the result, that an original affidavit is required, remains the same.
We are of this opinion because of the function of an affidavit. It is a sworn statement. It obviously bears greater legal significance than does the unsworn statement and leaves the affiant subject to the penalties for false swearing. Cf.
Holland v. Commonwealth, Ky., 479 S.W.2d 903 (1972). The truth of the statements made and the facts contained in the affidavit is limited in time to the point at which the statement was made as a result of the requirement that the signature of the affiant be followed by a dated notarization. CR 43.13; 28.01. The affiant is not swearing to the truth of the facts set out in the affidavit for any time subsequent to when the statement was made.
Thus, even though the facts remain unchanged, an original affidavit must be filed for each subsequent garnishment in order to make the sworn statement current. Filing a photocopy of the affidavit would not accomplish this result. 1
The repeated preparation of affidavits is, as you have noted, a time consuming process. Nevertheless, as garnishments are a creature of statute, those wishing to avail themselves of the remedy must abide by the procedures established by the statute. Any change therein may be brought about only through legislative action.
Footnotes
Footnotes
1 It should be noted that the use of copies has traditionally been the exception rather than the norm. Though copies and reproductions are becoming more widely acceptable (see KRS 422.105) their use is still greatly restricted. See OAG 79-246, copy enclosed, relating to the use of copies or reproductions of financing statements. The reasons mitigating against the use of the copied financing statements apply to prohibit the use of copied affidavits, absent express statutory authority to the contrary, for both contain the element of present interest. In the case of the financing statement it is the present intent to bind oneself to the agreement; in the affidavit it is the present intent to swear to the truth of the facts set out by or the statements made by the affiant.