72 P. 192 | Wyo. | 1903
The plaintiff in error, having obtained a judgment against the defendant in error, upon the 12th day of December had the Union Pacific Coal Company, by whom defendant in error was employed, summoned as garnishee. Upon a hearing on January 2d, defendant in error filed his motion to have the garnishee discharged and, with it, his affidavit under the statute, claiming the sum of $42.65, his earnings for the month of November, as exempt from execution. The court sustained the motion and made an order directing that the wages due from the compaii}'- to defendant in error be released from the levy.
Upon January 6th plaintiff in error had the company again summoned as garnishee and, upon her motion, a referee was appointed to take the answer of the garnishee under oath. It answered that it was indebted to defendant in- error in the sum of $42.65 for the month of November; that defendant had performed labor for the company in December and January, but that nothing was due defendant for those services, owing to the fact of collections made from him by the company for water, rent, hospital and store bills; that the whole amount due the defendant up to January 6th was the sum of $42.65, earned in November. The court found that the amount was exempt, and made its order accordingly.
1. Plaintiff in error contends, as we understand, that the hearing under the second summons in garnishment was a separate and distinct proceeding, and that, defendant having filed no second affidavit, there was nothing to show
We are unable to adopt this view of the case. It is true, no doubt, that a court is not authorized to incorporate into a proceeding before it an affidavit, or other evidence,, presented in a separate and distinct proceeding. This, however, was not a separate proceeding, but was in the nature of a rehearing granted upon the suggestion of the plaintiff in error herself bjr the affidavit of her counsel to the effect that the facts were not as set out in the affidavit formerly presented to the court by defendant. It was between the same parties, the judgment and execution were the same, and it had reference to the same earnings claimed as exempt. No second affidavit was necessary, and it was correctly and truly recited by the court in its order that “it appears to the court from the answer of the garnishee herein and from the files and papers in this case that the said sum of $42.65 was heretofore claimed by defendant as exempt by law and was wages earned by defendant for his personal services during the month of November, 1901.”
2. Plaintiff in error further contends that in any event, under a proper construction of the statute, she is entitled to one-half of the amount, claimed as exempt, to be applied upon her execution. The section involved is 3951, Revised Statutes, 1899, and counsel for plaintiff in error contends that the correct interpretation is that one-half of the earnings of the judgment debtor for services rendered within the time prescribed shall be exempt, but that no such exemption shall in any case exceed the sum of fifty dollars; while the District Court held, upon the other hand, that whenever the debtor brought himself within the statute one-half his earnings were exempt when it appeared that they were necessary for the use of his family; but that his earnings were exempt to the extent of fifty dollars, although the latter sum should exceed the one-half of the entire
The section as found in the Revised Statutes of 1887 was the Ohio statute, and read as follows: “Section 2831. The judge may order any property of the judgment debtor, or money due to him, not exempt by law, in the hands either of himself or other person, or of a corporation, to be applied toward the satisfaction of the judgment; but the earnings of the debtor for- his personal services at any time within three months next preceding the order cannot be so applied, when it is made to appear, by the affidavit of the debtor, or otherwise, that such earnings are necessary for the use of a family supported wholly or partly by his labor.” As amended the section is as follows: “The judge may order any property of the judgment debtor, or money due him, not exempt by law, in the hands of either himself or other person, or of a corporation, to be applied toward the satisfaction of a judgment; but one-half of the earnings of the judgment debtor for his personal services, rendered at any time within sixt}r days next preceding the levy of execution or levy of attachment, and due and owing at the time of such levy of execution or attachment, are exempt when it appears by the debtor’s affidavit, or otherwise, that such earnings are necessary for the use of his family residing in this State, supported wholly or in part by his labors; there shall be exempt in all cases a sum not to exceed fifty dollars.” (R. S. 1899, Sec. 3951.)
The comparison shows that the section as amended restricts the exemption to one-half, instead of extending it to the entire earnings, restricts the period within which the services must have been rendered to sixty days, instead of three months, and confines the benefits to a family residing within this State. Under the rule adopted by most of the courts in this country,.that, in view of the fact that such statutes are enacted for the purpose of saving debtors and
