110 Ky. 236 | Ky. Ct. App. | 1901
Opinion op the court by
Reversing.
The appellee 'William P. Johnson is, and has been for several years, clerk of the Jefferson County Court, entitled to a salary, payable by the State, amounting to $5,000 per annum. The other appellee is his wife. Some time prior to the institution of this action the appellant obtained a judgment in the Jefferson Circuit Court against the said William P. Johnson for the sum of'$3,313.12, with interest from August, 1897, upon which judgment execution was issued to the proper county, which was returned by the sheriff, in substance, “No property found.” The object of this action is to enforce the collection of said judgment. The two principal funds or items of property sought to be subjected are a reasonable portion of appellee’s salary and certain real estate in Jefferson county which is alleged to have been purchased and paid for, to the extent that it has been paid for at all, by the said William P. Johnson, but that the same was conveyed to the wife, Emma Johnson, for the purpose of delaying, hindering, and defrauding the creditors of the said William P. Johnson. It is also alleged in the petition that William 1?. Johnson, Jr., a son of the said appellee, and a minor, is working for a salary of $2,000. The prayer of the plaintiff, in substance, is for an attachment against the property of said William P. Johnson, and that he be compelled to make a discovery of any money, choses in action, or legal and equitable interests, or any other
It is the contention of appellee that under no state of ease could he be required to set apart any part of his salary for payment of the debt in question. He also contends that he had received, many years before he incurred the debt sued on, a large amount of money from his wife, and that he had a right -to pay the same to her, either by an assignment of the salary, or by having the land iu question conveyed to her. The appellant contends that, 'after allowing the said appellee, Johnson, a sufficient .amount of the salary to 'support himself and family in a style commensurate to his* surroundings and social position, he should be required to set apart annually, or from time to time as his salary is paid, the surplus, to be applied to the payment of the judgment sued on. Appellant'further contends that the money received by appellee from his wife was not an indebtedness of appellee, and that the payment for the real estate in question was in fact and law paid for-by or with appellee’s money, and therefore the real estate is liable or ought to be subjected to the payment of plaintiff’s claim. It . is further contended by -appellant that the question involved! as to the salary has* never been passed upon by this court; that the decisions heretofore rendered where parties sought to garnish fees or salaries of officers have no application to the question involved in this case. It is not contended
We are not aware of any decisions of this court in which the precise question here presented has ever been passed upon, nor do we find any statute1 expressly providing that officers’ fees or salaries shall not be subjected to the payment of debts against them. But it is very earnestly contended for appellee that various decisions of this court announce the doctrine that it is contrary to public policy to so subject the fees or salaries of officers. But, as- before intimated, the appellant contends that no such rule or doctrine is contained in any of the decisions in this court, and' refers us to many decisions which, as he assumes, sustain his contention. We will now proceed to notice some of the authorities from States other than Kentucky relied on in support of appellant’s contention: Pendleton v. Perkins, 49 Mo., 565, is cited. The court in that case held that, notwithstanding municipal corporations are- exempt by statute' from creditors’ bills or garnishment, nevertheless money due the defendants in the city treasury might be- subjected by proceedings in equity for the payment of plaintiff’s claim. But from the opinion in this case we find that the debtor was not an officer. And it seems that, even in the absence of such statute, it has been held that towns and cities could not be garnished for a .sum due an officer as part of his salary. Fortune v. City of St. Louis, 23 Mo., 239; Hawthorn v. Same, 11 Mo., 59. The court further
This action is assumed to be authorized by section 139, Civil Code Practice, Kentucky, which we deem it unneesary to quote. The appellant refers us to numerous decisions of this court in support of his contention which -wo have carefully examined, but deem it unnecessary to refer to in detail, :but will only refer to such as we think necessary. It was held in Field v. Chipley, 79 Ky., 260, that a contract by which the clerk of the Louisville •Chancery Court transferred and assigned to a trustee, ¡for the benefit -of ¡appellant, in consideration of a debt
•The appellees cite numerous Authorities' in support of their contention, which we have examined at great length. It may.be .taken as well settled that in the- case of jailers,
It is, however, earnestly contended for appellant that the real estate mentioned in the petition should be held subject to plaintiff’s claim, while it is equally as earnestly contended for appellee that he has a right to assign his .salary to his wife, or to have the land in question'deeded to her, and especially so for the reason that he had received large sums of money from her in the past, and that, he desired to pay the same. That he did receive such large -sums of money from her is clearly proven in this ■case. We have already referred to the decision holding the assignment of fees to be void and against public policy. It has been repeatedly decided by this court that pension money received by a' pensioner and invested in real estate can be subjected to the demand of a.n antecedent creditor, and it would be entirely inconsistent with such a rule to hold that officers’ fees or salary1 invested in real estate should be exempt from antecedent debts, even if we were deciding — which we are not — that an officers’ fees or salary are exempt by statute from the debts of the officer. It is further suggested for appellee that, -even if the debt due his wife was barred by the statute ■of limitation, he had a right to waive that statute and pay the debt, which he undoubtedly did have, if such a debt existed, and its payment was not prejudicial to the rights of another. After a careful consideration of the law and