135 Mo. App. 488 | Mo. Ct. App. | 1909
This respondent obtained a judgment before a justice of the peace in St. Louis against Colonel A. Mathias, for $400, on which an execution was issued by the justice and returned nulla bona. Thereafter, in August, 1906, a transcript of the judgment was filed in the office of the clerk of the circuit court of said city and an execution was issued from the clerk’s office in which the appellant Wm. Waltke & Company, a corporation, was garnished. Mathias was and had been for several years in the employ of said corporation as a salesman. ' The company is a West Virginia concern
The judgment was excessive, for no more than ten per cent of Mathias’ wages was subject to garnishment, he being the head of a family and a resident of this State. The balance of his wages was exempt from levy by statute. [R. S. 1899, sec. 3435, Davis v. Meredith, 48 Mo. 263.] The arrangement between him and the garnishee could not have been fraudulent against creditors as regards the exempt part of the salary. [Kulage v. Schuler, 7 Mo. App. 250; Jarboe v. Jarboe, 106 Mo. App. 459.] The case of Alt v. Bank, 9 Mo. App. 91, is different, because it involved property not by statute specifically exempt from levy, but only exempt when claimed to be.
It is said Mathias’s salary exemption was not mentioned in the garnishee’s answer and, therefore, was waived. No doubt it would be better to call attention to such a fact in answering, even though the interrogatories make no inquiry about it, as those before us made none; but we decline to hold the omission rendered the exemption unavailable to the garnishee as a defense, since the record contains proof of the essential facts that Mathias was head of a family and resident of the State and this evidence was palpably introduced to prove the immunity of all but ten per cent of his wages from levy. The immunity was asserted by the testimony and in the motion for new trial, which alleged an excessive judgment.