75 Colo. 451 | Colo. | 1924
delivered the opinion of the court.
Upon examination of the record and briefs we ordered the record supplemented. The defendants in error moved to strike the supplement. It consists of affidavits used below upon motion to discharge the garnishee which have never been made a part of the record by bill of exceptions. The motion must be granted.
Plaintiffs in error brought attachment against Gertrude Dubinsky, widow of Simon Dubinsky, and garnished the Larimer County Bank and Trust Company, administrator of his estate. The garnishee’s answer shows that the widow’s allowance had been allowed by the county court as a claim of the fourth class, and the briefs admit that payment had been ordered. The garnishee was discharged and the plaintiffs bring error.
1. It is claimed that the widow’s allowance is exempt from garnishment by public policy. Code of 1921, §§ 129 and 157 provides that a plaintiff may garnish “the credits, * * * debts, choses in action and other personal property of the defendant in the possession or under the control of any third person, as garnishee. * * *” Whatever the public policy may be, the express terms of the statute must control. Policy in such, case is for the consideration of the legislature, not the courts.
2. It is said that the widow’s allowance was in custodia legis. Not so. It had been ordered by the court to be paid to her and the administrator had no duty but to pay it. It was a debt from him to her.
3. It is claimed there is no proof of service of garnishment summons after the order of payment, but it appears that the order and service were on the same day; they were therefore presumptively at the same time (38 Cyc. 314-315; 30 L. R. A. 380, note; Levy v. Chicago Nat. Bank, 158 Ill. 88, 42 N. E. 129), and if so it is sufficient because in such case the custodia legis is not disturbed, and fear of such disturbance is the only reason for claiming that the service
4. The defendant in error claims that the widow’s allowance is exempt under C. L. § 5920. That section, however, gives her only the exemptions expressed in R. S. 1868, Ch. 48, which do not include the widow’s allowance.
Both parties ask us to decide the case on the motion for supersedeas.
Judgment reversed and cause remanded for further proceedings not inconsistent herewith.