125 P. 1005 | Or. | 1912
delivered the opinion of the court.
It is contended on behalf of the county that the fund was not subject to garnishment, because Wilson’s claim was contingent until presented for auditing and allowance. The contention of the plaintiff is that the claim is not contingent, and that the fact that the claim was no presented to the county at the time of, or before, the issuance
This one question is involved in the case, namely: Was the debt due from the county subject to garnishment? The sections of the statute applicable thereto are as follows: Section 234, subd. 1, L. O. L., provides that “if it appear from the certificate of the garnishee that he is owing a debt to the judgment debtor, which is then due, if such debt is not paid by such garnishee to the sheriff on demand, he shall levy on the property of the garnishee for the amount thereof, in all respects as if the execution was against the property of the garnishee; but if such debt is not then due, the sheriff shall sell the same according to the certificate, as other property.” The original garnishment law relating to public officers was passed in 1862 (Section 259, B. & C. Comp.), and provided that a public officer should not be liable to answer as garnishee. This section was repealed in 1903. See Laws of 1903, p. 199. In 1909, the legislature of this State enacted Section 258, L. O. L., which is as follows:
“Any salary, wages, credits, or other personal property in the possession or under the control of the State of Oregon or of any county, city, incorporated town, school district or other political subdivision therein or thereof, or any board, institution, commission, or officer of the same, belonging or owed to any person, firm or corporation whatsoever, shall be subject to attachment, garnishment and execution in the same manner and with the same effect as property in the possession of individuals is now subject to attachment, garnishment and execution; provided, however, that process in such proceedings may be served on the officer by or through whom such salary, wages, credits, or other property is paid or delivered in the ordinary course of business, or on the officer whose duty it is to audit or to issue a warrant for such salary, wages, money, or other personal property; and provided further, that no clerk or officer of any court shall be required to answer as garnishee as to any moneys or property in his possession in the custody of the law.”
“No order or warrant for the payment of any demand shall be valid, either in the hands of the original payee or holder, or any transferee or assignee thereof, unless the demand for which the same was issued shall have been first duly audited and approved by the county auditor, as in this act provided.”
The principle is announced in Ware v. Gowen, 65 Me. 534, and in Miller v. Scoville, 35 Ill. App. 385, that when labor contracted for is performed, and there remains only to fix its amount and value, the fact, that by the contract the payment is to be made on an estimate and certificate of the third person, does not constitute a contingency within the meaning of the statute. Clause 4, § 55, c. 86, of the Revised Statutes of Maine, provide that no trustee shall be charged:
“By reason of any money or other thing due from him to "the principal defendant; unless at the time of the service of the writ upon him, it is due- absolutely and not on any contingency.”
Section 61 of the same chapter provides that “any money or other thing due absolutely to the principal defendant, may be attached before it has become payable; but the trustee shall not be compelled to pay or deliver it before the time appointed therefor by the contract.” It was held that the phrase “due absolutely and not on a contingency” was applicable to the past earnings of a party, payable in the future on the estimate and certificate of a third person. See, also, Cutter v. Perkins, 47 Me. 557.
In Webster Wagon Co. v. Peterson, 27 W. Va. 314, at page 334, the court, in commenting on the views expressed by Mr. Waples, in his work on Attachment and Garnishment, c. 6, close of Section 4, p. 218, said:
“There may be deduced from these and other cases other reasons than those assigned by Waples, why, when a defendant has property or funds in the hands of another, though it may be under such circumstances that he cannot institute a suit for it without previous notice or demand, such property or funds will never be exempt from garnishment, merely because the defendant has not given such notice or made such demand.”
There are circumstances under which the garnishee will be liable, though the defendant could not immediately recover of him: (1) Under some statutes, when a debt is not yet due; (2) when notice on the part of the defendant is a prerequisite to recovery.
It follows that the judgment of the lower court should be affirmed, and it is so ordered. Affirmed.