| Neb. | Jan 15, 1886
This action was brought before a justice of the peace by the plaintiff against one L. N. Kintz, to recover judgment on an account assigned to the plaintiff. An affidavit for an •attachment was made and filed upon the ground that Kintz was a non-resident of this state, and an order of attachment and notice of garnishment served on the defendant. The defendant thereupon filed an answer as follows:
“Now comes the said Chicago, Burlington & Quincy R. R. Co., and for its answer as garnishee says:
1st. That L. N. Kintz had due him, at the time of the service of the garnishee process in the cause, $60 as wages ■earned in its employ.
2d. That said garnishee did not have at or after the service of the garnishee process upon it in this action any other property, money, rights, credits, or effects of any kind
' 3d. That said L. N. Kintz, defendant, was hired and employed in, and the contract for said hiring and employment was made in, the state of Iowa, that the service for which said amount is due was performed in said state, and it was agreed between the parties hereto, said garnishee and said defendant, that said wages should be paid in said state; that there has been no demand for the payment of the said amount so due made in the state of Iowa upon the garnishee by said defendant or any other person.
4th. That the cause of action upon which this suit is brought arose in the State of Iowa.
5th. That the assignors, Taylor & Calef, under a pretended assignment from whom the plaintiff in this action claims, were at all times mentioned and still are residents of the state of Iowa; .that said L. N. Kintz, defendant, was at all times mentioned herein and still is a married man, the head of a family and a resident of the state of Iowa. The said amount so due as aforesaid is due said defendant. as earnings and wages for his personal service performed within ninety days next preceding the service of garnishee process herein; that said amount is not more than sixty days’ wages of the said defendant as a clerk in the employ of the garnishee; that under the laws of the state of Iowa the said defendant is entitled to the said amount as exempt from garnishment, attachment, and execution; that the law refer-ed to is as follows: Sec. 3072, Code of Iowa, 1873, provides that any debtor a resident of the state of Iowa, and the head of a family, may hold exempt from execution the following (here follows a specification of the articles exempt). Sec. 3074, Codeof Iowa, 1873, isas follows : The earnings of such a debtor, for his personal service or those of his family, at any time within ninety days next preceding the levy are also exempt from execution or attachment.
7th. And further answering said garnishee says: That it is a foreign- corporation, that it is not a corporation existing under the laws of the state of Nebraska, that it is not a corporation within the county where the action is brought, that the said W. J. Davenport upon whom garnishee process was served in this case has his residence in Council Bluffs, Iowa, that he is present in Nebraska but a few hours each day, that he has no authority to pay out money of said garnishee defendant. That the garnishee is put to greattrouble and expense in answering garnishee process in the state of Nebraska, for the reason that the books showing the amount due its employes are not kept in the state of Nebraska, but in the state of Illinois, and its paymaster does not enter the state of Nebraska and has no agent in said state that has authority to audit claims against it or to pay out money for it.
8th. And further answering garnishee says: That it is informed and believes that the pretended assignment under which the plaintiff in this case claims is not bone fide, but was made without consideration, and for the sole purpose of evading the exemption law of the state of Iowa, and that .said Luther R. Wright is not the real party in interest in this action, but that the said Taylor & Calef are the real party in interest herein. And garnishee alleges that it may endanger its rights and become involved in expensive litigation if it should be required by the court to pay said amount into court.
Wherefore garnishee prays to be discharged from further liability herein.”
The plaintiff thereupon moved to strike from the answer of the garnishee the 3d, 4th, 5th, 6th, 7th, and 8th paragraphs, for the reason that the matter therein contained was “ unauthorized and voluntary, and forms no part of
The amount involved in this case is not large, but the questions presented are quite important, and as they have not heretofore been considered by this court it is necessary to examine the decisions relating to them.
In 1869 the legislature passed “an act to exempt laborers’, mechanics’, and clerks’ wages in the hands of employers from execution, attachment, and garnishee process,” which act as amended in 1873 is as follows (General Statutes, 715):
“Section 1. The wages of laborers, mechanics, and clerks, who are heads of families, in the hands of those by whom such laborers, mechanics, or clerks may be employed, both before and after such wages shall be due, shall be exempt from the operation of attachment, execution, and garnishee process; Provided, That not more than sixty days’ wages shall be exempt; Provided further, That nothing in this act shall be so construed as to protect the wages of persons who have or are about to abscond or leave the state from the provisions of law' now in force upon that subject; Provided further, That nothing in this act shall be so construed as to permit the attachment of sixty days’ wages in the hands of the employer.”
This act is now in force (Comp. St., Code, § 531a). It
A question similar to that under consideration was recently before the supreme court of Kansas, in Mo. P. Ry. Co. v. Maltby, 8 Pacific Rep., 235. In that case the parties were residents of Missouri, and the debt was contracted there, and by the laws of that state the money in the hands of the garnishee w'as exempt from garnishment, and was also exempt in Kansas. The summons was served on the debtor in Bourbon county, Kansas, and the notice of garnishment on the railroad company in the same county. The railroad company filed an answer claiming it was not liable as garnishee, and that the court had no jurisdiction over it, and that the sum due from it to the debtor was exempt from judicial process. The justice, however, refused to act upon this answer. Afterwards the creditor brought’ am action against the debtor and railroad company to recover $116.40. The railway company and the debtor answered separately, each claiming that the debt due from the railway company was exempt from judicial process, that the railway company -was not liable to be garnished for the same, and that the railway company was not liable in the action. The supreme court sustained the answer. It is said (page 239): “ In a proceeding in garnishment where all the parties are non-residents of the state of Kansas and are residents of the state of Missouri, and the thing attempted to be attached by the garnishment proceedings is a debt created and payable in the state of Missouri, but the garnishee does business and is liable to be garnished in this state, and the other parties come temporarily into Kansas, and while in Kansas the plaintiff, who is a creditor of
In Mineral Point R. R. Co. v. Barron, 83 Ill., 365" court="Ill." date_filed="1876-09-15" href="https://app.midpage.ai/document/mineral-point-railroad-v-barron-6959186?utm_source=webapp" opinion_id="6959186">83 Ill., 365, exemption was claimed under the following provision of statute : “ The wages and services of a defendant, being the head of a family and residing with the same, to an amount not exceeding $25, shall be exempt from garnishment.” The court held that this provision applied to non-residents as well as residents. This was affirmed in C. & A. R. R. Co. v. Bagland, 84 Ill., 375" court="Ill." date_filed="1877-01-15" href="https://app.midpage.ai/document/chicago--alton-railroad-v-ragland-6959377?utm_source=webapp" opinion_id="6959377">84 Ill., 375.
In Lowe v. Stringham, 14 Wis., 241" court="Wis." date_filed="1861-11-02" href="https://app.midpage.ai/document/lawton-v-howe-6598506?utm_source=webapp" opinion_id="6598506">14 Wis., 241, it was held that the statutory provisions relating to the exemption of personal property applied to persons temporarily sojourning within the. state, as well as to permanent residents. It is said (page 244): “ It would be entirely inconsistent with the beneficent intentions of the statute, as well as the dignity of a sovereign state, to say that the temporary sojourner or even the stranger within our gates was not entitled to its protection.”
In Hill v. Loomis, 6 N. H., 263, it was held that certain specific property was exempt by the laws of that state, even though the debtor resided in another state. To the same effect see Sproul v. McCoy, 26 O. S., 577. Haskill v. Andros, 4 Vt., 609" court="Vt." date_filed="1832-03-15" href="https://app.midpage.ai/document/haskill-v-andros-6571460?utm_source=webapp" opinion_id="6571460">4 Vt., 609. Casey v. Davis, 100 Mass., 124" court="Mass." date_filed="1868-10-15" href="https://app.midpage.ai/document/casey-v-davis-6415459?utm_source=webapp" opinion_id="6415459">100 Mass., 124. A few cases may be found in which it has been held the proceedings in cases like that under consideration are valid, but they are placed upon ground that we cannot approve.
2. It is alleged in substance in that part of the answer that wms stricken out, that the defendant is a foreign corporation ; that it is not a corporation doing business in this state, and that it has no agent here except W. J. Davenport, upon whom garnishee process was served, whose residence is Council Bluffs, Iowa, but who is present in this state for a few hours each day, etc.
The rule is well settled that process of garnishment served upon a non-resident of the state, but temporarily within it, is not effectual as an attachment. The reason is, that property without the state, in the hands of non-residents, and debts due from them there, are not within the jurisdiction of the court, and therefore the court cannot act upon the property or debt in the hands of such garnishee. Green v. Farmers’, etc., Bank, 25 Conn., 451. Casey v. Davis, 100
3. The right of the railroad company to plead the exemption.
In Missouri Pacific Ry. Co. v. Maltly, 8 Pacific Rep., 235, it was held that the garnishee may interpose the exemption as well as the debtor himself. Moll v. Jones, 33 Kan., 112" court="Kan." date_filed="1885-01-15" href="https://app.midpage.ai/document/mull-v-jones-7886432?utm_source=webapp" opinion_id="7886432">33 Kas., 112. This is according to the established rule, that the garnishee must disclose every fact which would have prevented a judgment against him. Drake on Attachment, § 630, and cases cited. As sixty days’ wages are absolutely exempt in favor of the heads of families, it is the duty of an employer, when summoned as garnishee, to state that the debtor is the head of a family, and that the amount owing to said debtor — stating it — is for wages earned within sixty days. This, if true, is a complete defense to the garnishment proceedings. The judgment of the district court is affirmed.
JUDGMENT AFFIRMED.