Plаintiff brought this action in general assumpsit and filed specifications setting forth the alleged indebtedness owing by the defendant.
Dolby & Lilly, Inc., a Maine corporation, and the employer of the defendant, was properly served as trustee. The trustee disclosed that it owed the defendant for wages the sum of $39.08 for the week *250 ending August 12, 1967 over and above the statutory exеmption provided for in 12 V.S.A. §3020(5).
On December 15, 1967 judgment was entered in the Washington District Court against the trustеe for the above amount, and also against the principal defendant for $381.50. The defendant has appealed from this judgment order.
The defendant moved to dismiss the action, on the ground that the trustee process, which issued in the proceedings, was an unconstitutional deprivation of due process of law under the 14th Amendment to the Constitution of the Unitеd States, and by reason thereof plaintiff’s resort to trustee process ousted the court from jurisdiction in this case. This is the single question briefed by the defendant, and before us for reviеw.
Chapter 121 of 12 V.S.A. sets forth actions in which trustee process is available, and persons and property subject to trustee process. The statutory authority for the issuance of trustee process in this case is found in 12 V.S.A. §3011 which reads:
“Actions founded on a contract express or implied, and actions for an accounting or on book accоunt, brought in a county or municipal court (now district) or before a justice, may be commenced by trustee process.”
A related statute, 12 V.S.A. §3018, also provides:
“Any money or other thing due the defendant may be attachеd by trustee process before it has become payable, provided it is due absolutely and without contingency. The trustee shall not be compelled to pay or delivеr it before the time fixed by the contract.”
12 V.S.A. §3020(5) as amended in 1966 imposes certain limitations undеr which wages or compensation for work or labor performed may be attaсhed by trustee process. No question arises here as to the amount of defendant’s wages properly withheld and not subject to exemption under the statute.
Many states refer to this form of attachment as garnishment, rather than trustee process, — a differencе in name only. Trustee process or garnishment is a part of the remedy provided by statutes for the collection of a debt.
A state may by appropriate legislation authorize the attachment or garnishment of property within its borders, subject to the *251 limitations оf the federal and state constitutions. 6 Am.Jur.2nd Attachment and Garishment, §5; 38 C.J.S. Garnishment §3(a).
The purposе of trustee process is to enable the plaintiff to subject to the payment of his claim, property of the defendant in the hands of a third person.
Such an attachment, being conditional and temporary, and part of the legal remedy and procedurе by which property of a debtor may be taken in satisfaction of a debt, if judgment be recovered, is not the deprivation of property without due process of law cоntemplated by the 14th Amendment to the Constitution of the United States.
McInnes
v. McKay,
An attachment or garnishment is not a deprivation of property without due process of law within the meaning of cоnstitutional provisions, inasmuch as there must be an adjudication of the rights of the parties before the property can be subjected to the plaintiff’s claim.
Byrd
v.
Rector,
By the trustee prоcess in this case, the wages in question were merely detained temporarily pending thе final outcome of the case. Until, and unless the plaintiff obtained a judgment, defendant’s wаges in the hands of the trustee were immune from the plaintiff’s grasp. Under no circumstances сould they be converted into cash and applied on the plaintiff’s demand prior tо the final adjudication of the merits of the controversy between plaintiff and the defendant.
The established rule is that every presumption is to be made in favor of the constitutiоnality of an act of the Legislature and it will not be declared unconstitutional without clear and irrefragable proof that it infringes the paramount law.
Village of Waterbury
v.
Melendy,
The defendant was affоrded a reasonable opportunity to be heard and defend the action on the merits. He rejected this opportunity by staking his resistance to the claim on the bare аssertion that plaintiff’s resort to trustee process is unconstitutional. His claim in this regard is without merit and, accordingly, the judgment order must be affirmed.
Judgment order affirmed.