134 Mo. App. 188 | Mo. Ct. App. | 1908
On June 21, 1906, plaintiff obtained a decree divorcing her from the bonds of matrimony theretofore contracted with defendant, Miles M. Anderson, custody of their minor child and allowance of $25 per month as alimony, payable on the fifteenth day of each and every month thereafter. Defendant defaulted in the payment of alimony for the months of February and March, 1907, and execution was issued. The Nor-vell-Shapleigh Hardware Company was summoned as garnishee. The garnishee appeared and in answer to interrogatories, stated defendant was in its employ at a wage of $75 per month, and that it was indebted to him as follows:
“$87.50 on April 15th for wages or salary due him from April 1st to April 15th, 1907.
“37.50 due him on May 30, 1907, for wages or salary due him from April 15th, to April 30, 1907.
“$37.50 due him May 15th, for wages or salary due him from May 1, 1907, to May 15, 1907.
“37.50 due him on May 31, 1907, for wages or salary due him from May 15th to May 31st, and
“$16.32 due him from June 1st to and including June 7, 1907.”
And then set up- that defendant was a married man, the head of a family and a resident of the State of • Missouri, and that the wages due him, except ten per cent thereof, were exempt from execution. The court, on the answer, ordered the garnishee to pay into court $100, installments of alimony due plaintiff for
On the record as thus presented, the sole question for decision is whether a married man, the head of a family and a resident of this State is entitled to claim exemptions allowed under the provisions of section 3162, Revised Statutes 1899, as amended in 1903 (sec. 3162, Mo. Ann. St. 1906) against an execution issued on a judgment for alimony. The section as amended reads as follows:
“Each head of a family, at his election, in lieu of the property mentioned in the first and second subdivision of section 3159, may select and hold, exempt from execution, any other property, real, personal or mixed, or debts and wages, not exceeding in value the amount of $300, except 10 per cent of any debt, income, salary or wages due such head of a family.”
The section is general and contains no exceptions. But section 4327a, enacted in 1903, as a new section to chapter 51 entitled “Married women” provides as follows:
“No property shall be exempt from attachment or execution in a proceeding instituted by a married woman for maintenance, nor from attachment or execution upon a judgment or order issued to enforce a decree for alimony. And all wages due to the defendant shall be subject to garnishment on attachment or execution in any proceedings mentioned in this section, whether said wages are due from the garnishee to the defendant for the last.thirty days’ service or not.”
In the case of Long v. Long, 78 Mo. App. 32, cited
2. The exemption statute was approved April 6, 1903. Section 4327a was approved on a prior date, to-wit, March 24, 1903. For the reason the exemption statute was approved at a date subsequent to the approval of section 4327a, it is contended that this section was repealed by the subsequent act. Under the Constitution (art. 4, sec. 3G) both acts took effect at the same time, to-wit, ninety days after the day on which the G-eneral Assembly that enacted them finally adjourned. Whether this has any bearing on the question or not, the fact remains that the two acts are not repugnant. The one is not inconsistent with the other and both may therefore stand — and should stand. [State ex rel. v. Stratton, 136 Mo. 423; Manker v. Faulhaber, 94 Mo. 430; Curtwright v. Crow, 44 Mo. App. 563.]
3. The argument of the hardship that section 4327a imposes upon defendant and others similarly situated might be of some force, if addressed to the legislative department. It is of no persuasive force when addressed to a court called upon to construe the
The judgment is affirmed.