165 So. 496 | La. Ct. App. | 1936
This suit was brought by the city to have the judgment against it set aside on several grounds. These include an attack on the form of citation served on the city as garnishee; that no preliminary judgment by default was entered against it prior to rendition of judgment; that the mayor of the city understood from counsel of Aaron Son that no action would be taken in the case without prior notice to him; and that the order of court did not specifically direct the garnishee to answer the interrogatories propounded to and served on it within ten days.
In view of the fact that the city has acquiesced in the regularity of the proceedings precedent to rendition of the judgment against it and has recognized the binding force of the judgment itself by making payments thereunder, the above-mentioned grounds of attack are not tenable now.
The city also seeks to have the original case against it as garnishee reopened and the judgment rendered therein modified "because said judgment did not operate as a judgment against the City of Natchitoches, other than to order the City to pay Julius Aaron Son the sum of $20.00 per month out of Johnnie Berry's salary." The prayer of the petition is as follows: "Wherefore, petitioner prays that Julius Aaron Son be ordered to show cause on a day and date to be determined by this Honorable Court why this case should not be reopened and why the judgment rendered herein on May 5, 1934, should not be set aside, for the reasons alleged above in this petition; finally prays for all other orders and decrees necessary in the premises and for general and equitable relief; all cost of this rule, etc."
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The court rejected the city's suit. This appeal is prosecuted by it.
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The fact that the judgment against the garnishee does not provide that payments thereunder shall only be mandatory for the term of the debtor's employment does not affect the right of the garnishee under the act to seek and secure relief from paying money to the creditor when none is due the debtor.
The purpose and intent of the act are quite clearly reflected from its provisions. It was designed to give to a creditor the right to seize and have paid to him a fair portion of the wage or salary accruing to his debtor so long as such debtor is employed. In such a case, the act does not attempt to go further. When the employment ceases, the judgment ordering the garnishee to pay over a part of the employee's salary to his judgment creditor also ceases to have effect. If the law were otherwise, garnishees could be, and would often be, mulcted for the benefit of persons to whom they are due nothing.
The lower court should have reopened the case and granted the relief prayed for. We are in a position to finally dispose of the case, as the entire record, including the testimony taken on trial of the merits, is before us.
For the reasons assigned, the judgment appealed from is annulled, reversed, and set aside; and there is now judgment in favor of the city of Natchitoches and against Julius Aaron Son reopening case No. 21197 on the civil docket of the Tenth judicial district court of the parish of Natchitoches, styled Julius Aaron Son v. Johnnie Berry, city of Natchitoches, Garnishee, and, for the reasons herein assigned, the judgment against said city, as garnishee, is hereby set aside and declared of no further effect. It is further decreed that Julius Aaron Son pay all costs of this suit.