§88-92 Garnishment in certain cases; procedure. Whenever the comptroller or attorney general of the State, or any county finance director or attorney, or the head of any department, bureau, board or other agency of the State or any county finds, or has reason to believe, that any person entitled to any moneys mentioned in section 88-91 (such person being hereinafter in this section designated as the defendant) has embezzled, stolen or otherwise unlawfully taken, received, retained or failed properly to account for, any property or funds belonging, and which have not been returned or repaid, to the State or any county or any department, bureau, board, or other agency thereof, he shall promptly notify the board of trustees thereof in writing requesting the board to withhold payment of such moneys to the defendant pending the investigation hereinafter provided for and shall proceed promptly to make such investigation as he deems necessary to ascertain the facts.

If after the investigation he finds insufficient evidence in his judgment to warrant the action hereinafter provided for, or if the investigation exonerates the defendant, he shall promptly notify the board in writing of such finding and shall withdraw the notice to withhold.

If, however, in his judgment, the evidence warrants the action, he shall forthwith bring an action in the name of the State or county, or the department, bureau, board or other agency concerned (if it is authorized by law to sue in its own name), as the case may be, against the defendant in a court having jurisdiction of the amount of the judgment prayed for in any district or circuit, as the case may be, in which the defendant can be found or resides, or in the circuit court of the first judicial circuit, setting forth of his own knowledge or on information and belief, as the case may be, the facts of the case, including the amount of funds or the value and description of the property alleged to have been embezzled, stolen or otherwise unlawfully taken, received or retained, or not properly accounted for, naming the board as garnishee, and praying for judgment against the defendant and for the issuance of garnishment process against the board. All such courts are hereby given jurisdiction of these actions.

The form of the complaint and summons shall be similar, as nearly as may be, to that used in proceedings against government beneficiaries under chapter 653, and the action authorized by this section shall lie notwithstanding the fact that the claim in certain cases may be for an unliquidated amount or may sound in tort. Upon receipt of the notice, the board shall withhold the payment of the moneys to the defendant for the period and in the manner hereinafter provided. If the garnishment process hereinabove mentioned is not served upon the board within the period of sixty days after receipt by the board of the notice to withhold, or if before the expiration of the period the notice to withhold shall be withdrawn, the board shall thereupon pay such moneys to the defendant.

If, however, the garnishment process is served upon the board within the period, it shall be unlawful for the board to pay any such moneys to the defendant or his order until the garnishment proceedings shall have been withdrawn or dismissed, or the judgment, if any, obtained against the defendant shall have been fully paid, any of which events, as the case may be, shall be certified by the court, in or before which such proceedings has been pending. The moneys so withheld from the defendant shall be deemed sequestered in the custody of the board from the time of service on the board. At any time after service upon the board, the court, upon the consent of the plaintiff or upon motion of the defendant or of the board and notice to the plaintiff, may determine whether the amount so withheld is excessive in comparison with the judgment that the plaintiff might obtain in the action, and, if so, what part thereof is a reasonable amount to be so sequestered, and may thereupon release the remainder thereof from being so sequestered.

The provisions of chapter 653 shall be applicable, as nearly as may be, to garnishment proceedings authorized by this section, as to certification of the judgment to the garnishee, payment of judgment, and other matters not specifically provided for in this section. [L 1933, c 81, §2; RL 1935, §7931; RL 1945, §716; RL 1955, §6-59; am L 1957, c 152, §1; HRS §88-83; am L 1969, c 110, pt of §1]