99 So. 573 | Miss. | 1924
delivered the opinion of the court.
This is an appeal from a judgment allowing the claim of a judgment debtor that a debt due him by a garnishee is exempt from execution or attachment under section 2147, Code of 1906 (Hemingway’s Code, secliou 1822), which provides:
“Every citizen of this state, male or female, being a householder, and having a family residing in any city, town or village, shall be entitled to hold, exempt from seizure or sale under execution or attachment, the land and buildings owned and occupied as a residence by such person, not to exceed in value, save as hereinafter provided, three thousand dollars, and personal property to
The reporter will set out the facts as stated in the brief of counsel for the appellant.
The contentions of counsel for the appellant are:
(1) That' a garnishment is neither an execution nor an attachment, and that consequently the exemption claimed does not come within the provisions of the statute.
(2) The exemption of the wages of the head of a family is limited by the tenth paragraph of section 2139, Code of 1906 (Hemingway’s Code, section 1812), to fifty dollars per month.
(3) That the said debt due the appellee by the garnishee is not personal property, as defined by section 1591, Code of 1906 (Hemingway’s Code, section 1358).
While it is true that in a garnishment proceeding property is not seized in the sense that it is taken into the manual possession of the officer by whom the writ is executed, nevertheless it is to all intents and purposes an attachment, being the process by which money and goods due a judgment or- attachment debtor by third persons are attached. 2 Bouvier’s Law Dictionary (Rawle’s Third Revision), p. 1335.
It is true that the tenth subdivision of section 2139, Code of 1906 (Hemingway’s Code, section 1812), provides that there “ shall be exempt from garnishment or other legal process, . . . the wages of every laborer or person working for wages, being the head of a family, to the amount of fifty dollars per month;” but this exemption is one of the various other exemptions granted by the statute to the head of a family, all of which can be waived under section 2147, Code of 1906 (Hemingway’s Code, section 1822), and personal property not to exceed two hundred fifty dollars be selected in lieu thereof. Consequently the restriction therein of the exemp
At common law personal property '“includes money, chattels, things in action, and evidence of debt,” 3 Bouvier’s Law Dictionary (Rawle’s Third Revision), p. 2576, and it is hardly probable that the legislature intended by section 1591, Code of 1906 (Hemingway’s Code, section 1358), to exclude things in action and evidence of debt therefrom. The section provides:
“The term ‘personal property,’ when used in any statute, shall include goods, chattels, effects, evidences of rights of action, and all written instruments by which any pecuniary obligation, or any right, title, or interest in any real or personal estate, shall be created, acknowledged, transferred, incurred, defeated, discharged, or diminished. ’ ’
The word “effects” defines property in a more extensive sense than goods and chattels, and may include things in action, 1 Bouvier’s Law Dictionary (Rawle’s Third Revision) p. 975, and we are of opinion that it includes such here.
Affirmed.