Brenneke v. Duigenan, No. 183

No. 183 | Kan. Ct. App. | Jul 20, 1897

McElroy, J.

There are but two questions in this case.

I. Are the proceeds of a mortgage on a homestead subject to garnishment for the payment of an ordinary judgment indebtedness? The homestead was exempt, and Holst and wife had a right to sell the homestead or mortgage the same, and the money derived from such sale or mortgage -would be exempt. This fund was exempt. It was not subject to garnishment on an ordinary claim or judgment.

II. Are the provisions of chapter 151, Laws of 1889, p. 210, applicable to proceedings in justice’s court? We are of the opinion that it was the intention of the Legislature that the provisions of such chapter should be applicable to procedure in the district court only. The first section of the act reads : “Any creditor shall be entitled to proceed by garnishment in the district court of the proper county against any person,” etc. It was evidently the intention of the Legislature that this chapter should be confined in its operation to procedure in the district court. There is nothing in the act itself inconsistent with the declarations of the Legislature.

The judgment is affirmed.