On Motion for Rehearing.
We do not believe the conclusion reached, by us on original hearing is in conflict witlu the opinion of the Court of Civil Appeals - in Sutherland v. Young, 292 S.W. 581, 582. In that case plaintiff sought by garnishment. proceedings to subject salary due an auditor which he had voluntarily deposited ini bank to payment of a debt owing by that auditor to plaintiff, and it was held that could be done. But this was said in the opinion: “The sole issue to be determined is wheth- - *1105er the funds thus deposited are exempt * * * 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.”
It thus appears that the rule of public policy and the reasons therefor which protects the fees of a public officer from claims of creditors was not discussed nor was any reference made to the decisions in Nat. Bank of El Paso v. Fink, 86 Tex. 303, 24 S.W. 256, 40 Am.St.Rep. 833, and Sanger v. City of Waco, 15 Tex.Civ.App. 424, 40 S.W. 549 (writ of error refused) which were the basis of our conclusions. And while the Fink Case had reference only to unearned fees of office, in the Sanger Case fees already earned were the ones in controversy, but it was held that the reasoning of the Fink Case was applicable. Although the constable’s fees in controversy here had been collected and deposited in bank, we fail to perceive how that fact would make the rule of public policy announced in those two cases inapplicable, since the deposit bank for safety and convenience would nevertheless be for his use in the future for support of himself and family. The same rule of public policy with reasons supporting it are announced in 12 R.C.L. p. 802.
To hold that the exemption accorded to the constable by the rule of public policy ceased as soon as he deposited his fees in the bank and before he had occasion to use them for support of himself and family would defeat the very purpose of the rule. And, as pointed out by Judge Brown in the Fink Case, the rule is applicable, especially if the funds impounded are fees of office, as is true in this case, rather than a fixed salary.
Moreover, article 4099, Rev.Civ. St., exempting current wages from garnishment proceedings, was enacted for the benefit of the wage earner only and no public interest is involved in its enforcement. And the statute clearly imports that it is applicable only so long as the current wages are uncollected.
The record shows that the bank deposit impounded by the writ of garnishment covered witness fees which had been collected by the constable and those witnesses were not made parties to the suit in order to determine their interests therein. And, according to some authorities, the deposit was not subject to garnishment by reason of the undetermined respective rights of the witnesses and constable. Following are authorities supporting that contention: 28 C. J. § 25, p. 97; 12 R.C.L. § 28, p. 799, and decisions there cited; and to the same effect in principle, see 20 Tex.Jur. § 19, p. 720, denying the right of garnishment to impound the interest of a member in partnership property to satisfy his individual debt. However, we express no opinion as to whether or not those authorities are applicable here, because unnecessary, in view of our conclusions noted above.
Appellant’s motion for rehearing is overruled.