The opinion of the court was delivered by
Horton, C. J.:
Two questions are presented in this case: First, are the findings of fact supported by the evidence? Second, are the personal earnings of Jesse Gaut, due to him from the Kansas City, St. Joseph & Council Bluffs Railroad Company, exempt from the payment of the judgment recovered against him by Gough & Linley? The disputed finding of fact is as follows:
“After the order of the justice of the peace of February 15, 1883, overruling the motion for the discharge of the garnishee and denying the exemption, said Jesse Gaut did not desire any further litigation, but was willing that said sum of $20 should be applied toward the satisfaction of the judgment.”
The only evidence in the record that we can find tending in any way to support this conclusion of fact, is as follows: Jesse Gaut testified':
“I owe Gough & Linley, who are physicians in Atchison, *6for attendance upon my wife; have -wanted and intended to pay them what I owe them, but my wife has been weakly and it has cost me my wages to live and support my wife and child; the railroad company first notified me that it had been garnished ' for $20 on January 23, 1883; they kept that amount out of my wages and paid me the balance due; after that, and along in January, 1884,1 was notified that the company was garnished again for it, but after learning it was garnished on the same old case, they paid me all that was due, excepting $25 which was due me for my personal earnings at that time.”
On cross-examination he further testified:
“ I don’t know how many trips I made, or how much I made in January, 1883, before the 23d of the month; the railroad company kept back $20 of my January wages for 1883, and told me I was garnished again in January, 1884, and kept back $5 more. I supposed the $20 had been paid to Gough & Linley until after the other money was kept back; I wrote a letter to Dr. Gough after the $5 w7as kept back; I don’t think I said I was willing to have that debt paid out of the money, and have never signified my willingness to pay the debt out of this money; I wrote the letter to Dr. Gough about last March; didn’t write that I wanted it [the debt] paid, and supposed it had been; I wrote that they had garnished me once before for that debt, and wanted to know what they garnished my wages again for. When I was notified of the first garnishment, I went to the office of John Taylor, a justice of the peace in St. Joseph, and told him that I had been garnished, and stated the facts, and a young man in the office wrote a notice to the railroad company that I claimed all the earnings due me as exempt from execution or attachment. I signed and swore to it, and then delivered it to Mr. Carter at the superintendent’s office of the railroad company.”
Dr. W. M. Gough testified as follows:
“I received a letter about Christmas from Jesse Gaut; it is lost; T think he said in that letter that $20 or $25 more had been kept out; I think he said he intended to pay the debt, and that it had been paid, but would not pay it twice; I never got anything on this debt; he never denied owing the debt to me; he complained that his wages were garnished twice on the debt; I cannot recollect exactly what was in the letter; I have stated the substance as I remember it.”
*7It further appears from, the record, that Gough & Linley commenced their action against Jesse Gaut and garnished the wages due him from the railroad company on January 23, 1883; on the same day, he served a written notice upon the railroad company, signed and sworn to by him, claiming all the wages due to him as exempt from execution or attachment; then, on February 3, 1883, the railroad company answered as garnishee that the moneys due Gaut were his wages as an employé, and exempt, and at the same time the affidavit of Gaut was filed before the justice asking his wages to be declared exempt to him. On February 10, 1883, Gaut appeared by his attorney to defend the action, in which a judgment was rendered against him. On February 15, 1883, Jesse Gaut, and also the railroad company, appeared before the justice and presented the statutes of Missouri, claiming that the wages garnished were exempt. After the order of February 15, 1883,' was made for the garnishee to pay the $20 into the hands of the justice to apply upon the judgment and costs, *nothing further was done toward the enforcement of this order until January 14,1884, when the justice made another order for the railroad company, ás garnishee, to pay the money in satisfaction of the judgment and costs. The railroad company refusing to comply with the order, the plaintiffs filed their bill of particulars on March 7,1884, asking judgment in their favor and against the defendants for the $20 garnished, with interest from February 15, 1883, and also for all costs. The railroad company filed its answer on April 12-, 1884; judgment was rendered against the company on April 14, 1884, for $25.94 and costs, taxed at $5.80; the case was then appealed -by the railroad company to the district court; on June 24,1884, Jesse Gaut presented his motion for leave to be made a defendant and to file his answer; this was granted,' and his answer filed; ever since, he has continued to be vigilant in claiming his exemption.
Upon the oral evidence and the records before the justice of the peace and the district court, we do not think that there is any evidence to support the finding that Gaut did not desire *8any further litigation, or was willing that the sum of $20 should be applied in satisfaction of the judgment rendered before the justice of the peace. The most that can be said is, that he supposed when the railroad company retained $20 the company had paid it to Gough & Linléy, but when he found this was not the case, he was anxious to claim all his wages as exempt.
“Until the right of exemption is waived, or lost by some unequivocal act or declaration of the debtor, it remains with him, and any of his property which is included within the terms of the statute is beyond the reach of the officer and his process.” (Rice v. Nolan, 33 Kan. 28" court="Kan." date_filed="1885-01-15" href="https://app.midpage.ai/document/rice-v-nolan-7886416?utm_source=webapp" opinion_id="7886416">33 Kas. 28.)
i. Finding; evidence; review. Counsel for plaintiffs below suggest that as all the evidence not preserved, the findings of the court are con-c|usive_ The record, however, shows that upon the disputed findings of fact all of the evidence thatwas offered is embraced therein.
It is »the claim of defendants below that the judgment of the district court was rendered upon the finding that Gaut was not a resident of this state at the time of the garnishment. If such was the ruling it was erroneous. ‘
3. BMningsof empMojifresidebtor. 3. Garnishment; debtor. “Under the statute, the earnings of a debtor for his personal services at any time within three months next preceding the attempt to subject such earnings to the payment of his debts are exempt from such payment, if it be made to appear by the debtor’s affidavit, or otherwise, that such earnings are necessary for the use of his family, supported wholly or partially by his labor; and no distinction is made by the statute between residents and non-residents, or between debts created in Kansas and debts created elsewhere; and the weight of authority seems to be that where the statutes do not make any distinctions, that no such distinctions exist; that if the statutes do not restrict the exemption of property for the payment of debts to residents, or to some other particular class of persons, the courts have no authority to make such restriction, and the statute will apply to all classes, non-residents as well as residents.” (Mo. Pac. Rly. Co. v. Maltby, 34 Kan. 13" court="Kan." date_filed="1885-07-15" href="https://app.midpage.ai/document/miller-v-noyes-7886545?utm_source=webapp" opinion_id="7886545">34 Kas. 130; Zimmerman v. Franke, 34 id. 650.)
*94. case aistingmshed. In B. & M. Rld. Co. v. Thompson, 31 Kan. 180" court="Kan." date_filed="1884-01-15" href="https://app.midpage.ai/document/burlington--missouri-river-railroad-v-thompson-7886140?utm_source=webapp" opinion_id="7886140">31 Kas. 180, the case was discussed and decided, whether the exemption laws of Nebraska have force in this state, the trial judge remarking, that “the showing was insufficient to sustain the exemption under the laws of Kansas,” and in the conclusion of his opinion, said: “The garnishee has not made out a case of exemption for its creditor here under our statute which governs us, and which we must follow in preference to the Nebraska statute.” If it be claimed thát the judgment rests upon the adjudication of the justice refusing to set aside the garnishment and discharge the fund as exempt, it is sufficient to say that such an order is not conclusive. Such a ruling is neither a judgment nor a final order, and is not reviewable by proceedings in error. Neither the railroad company nor Gaut could successfully have instituted proceedings in error in the district court. (Zimmerman v. Franke, supra; Miller v. Noyes, 34 Kan. 13" court="Kan." date_filed="1885-07-15" href="https://app.midpage.ai/document/miller-v-noyes-7886545?utm_source=webapp" opinion_id="7886545">34 Kas. 13; Board of Education v. Scoville, 13 id. 32; Phelps v. Railroad Co., 28 id. 169; Mull v. Jones; 33 id, 112.)
"We think there is nothing whatever in the suggestion that Gaut was not properly a party to this action in the district court, or that the exemption had "been lost by lapse of time. The last'finding of the court shows that the money garnished was for the earnings of Gaut for his personal services for the railroad company within less than three months next preceding the garnishment proceeding, and that the earnings were and are necessary for the maintenance and use of his family, which was and is supported wholly by his labor.
The judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring.