292 S.W. 581 | Tex. App. | 1927
The facts in this case are undisputed. Appellant was employed by Falls county as county auditor at a salary of $190 per month, to be paid at the end of each calendar month. On April 1, 1926, he received a check for $190 in payment of his March salary, and immediately deposited same in the Marlin National Bank to his credit. On the day the fund was so deposited appellee, who held a valid judgment against appellant, caused a writ of garnishment to be served on said bank, and thereby impounded said fund. It is admitted that appellant had no other funds in the bank and that the entire sum in his name in the bank was the money which he had received for the past month's salary. The sole issue to be determined is whether the funds thus deposited are exempt to appellant as current wages. The trial court held that the funds were subject to garnishment and rendered judgment accordingly. Appellant contends that, so long as the wages can be traced, same continue to be exempt to him under the Constitution and statutes of Texas.
In Bell v. Indian Live Stock Co. (Tex. Sup.) 11 S.W. 344, 3 L.R.A. 642, the employee had voluntarily left his wages with his employer, and in discussing the question whether the wages so left were "current wages" subject to garnishment, the Supreme Court held that same had ceased to be current wages, and in its opinion stated:
"While we think it clear that the money in the hands of the garnishee [employer] was due to Addington [employee] as wages for personal service, within the meaning of that phrase as used in our Constitution and statutes, we are also of opinion that the money had ceased to be current wages, and that it was subject to the writ of garnishment. The wages were payable monthly, and were exempt for the month current at the time of the service of the writ, but the exemption ceased to apply when the wages became past due."
In Davidson v. Logeman Chair Co. (Tex.Civ.App.)
When the employee "voluntarily left his wages * * * in the hands of his employer, * * * the amount was no longer current wages, but was in the same position as though he had drawn the amount and deposited it with a banker. The exemption was destroyed by the money being allowed to remain in the hands of the employer. * * * Whenever the wages become subject to the control of the employee, and he voluntarily leaves them with his employer, or collects and deposits them with some one else, he has robbed them of their character as current wages, and the protection extended to them by Constitution and statute is lost."
The holdings in the above cases are cited with approval in Gaddy v. First Nat. Bank (Tex.Civ.App.)
"No sum of money due, or to become due, to any pensioner shall be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, * * * but shall inure wholly to the benefit of such pensioner."
The United States courts, in construing the above statute, hold that pension money received from the government loses its exemption so soon as it has been paid to and received by the pensioner, and that same is not exempt from the payment of his debts although it is kept separate and distinct from other funds owned by him. In re Jones (D.C.) 166 F. 337; McIntosh v. Aubrey,
Our Constitution and laws exempt to the head of each family the homestead, and our Supreme Court held that, immediately upon the homestead being sold and converted into cash, the funds derived therefrom lost their exemption and became subject to the payment of debts due by the head of the, family. Mann v. Kelsey,
We have examined all of appellant's assignments of error and same are overruled. The judgment of the trial court is affirmed.
