35 Kan. 1 | Kan. | 1886
The opinion of the court was delivered by
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,*6 for 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.”
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
“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 Kas. 28.)
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. ‘
"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.