Radke v. Padgett

CiiRistiaNsoN, L

This action was commenced before a justice of the peace to enforce collection of a bill for groceries and other provisions sold and delivered by him to the defendant. Ancillary to the main action, a garnishment action was instituted by the plaintiff against the Chicago, Milwaukee & St. Paul Railway Company as garnishee. The defendant interposed no answer in the main action but interposed an answer in the garnishment action claiming that the sum clue him from the garnishee, to wit, t$401.60 was exempt under the laws of this state. The justice of the peace sustained the contention of the defendant in the garnishment action and entered a judgment dismissing such action, lie also ordered a dismissal of the main action on certain grounds which it is not necessary to consider here. The plaintiff appealed to the district court on questions of law and the district court ruled that the justice of the peace had erred in dismissing the main action and directed judgment to be entered in favor of the plaintiff for the amount demanded in the complaint. The district court further ruled that the justice of the peace had erred in dismissing the garnishment action. As regards the garnishment action, however, the district court further ruled that § 7782, Comp'. Laws, 1913, was applicable and ordered that the garnishment action be placed upon the calendar for trial in the district court and defendant afforded an opportunity to introduce evidence under said § 7782, supra. The plaintiff appealed to this court from the decision of the district court as regards the garnishment action.

In our opinion the district court was in error in holding § 7782,. supra, applicable in the garnishment action. The section reads as follows:

“The judge may order any property of the judgment debtor not exempt from execution in the hands either of himself or any other person or due the judgment debtor to be applied towards the satisfaction of the judgment; except that the earnings of the debtor for his personal services at any time within sixty days next preceding the order cannot *407be so applied when it is made to appear by the debtor’s affidavit or otherwise, that such earnings are necessary for the use of, a family supported wholly or partly by his labor.”

That section in its present form was embodied in the Revised Code of the territory of Dakota of 1877, § 371 Code Civ. Proc. 1877, and has not been changed since. The section as originally adopted was part of the chapter relating to “Proceedings supplementary to execution” and still remains a part of that chapter. At the time this section was adopted garnishment actions were unknown in this jurisdiction. The statute now in force relating to exemptions in an action like this,, viz., an action to enforce collection of a bill for groceries and other provisions reads as follows: “No personal property except absolute exemptions shall be exempt from execution or attachment in an action for laborer or mechanic’s wages or for a debt incurred for property obtained under false pretenses; and no personal property shall be exempt from such process in an action for the collection of a bill of a nurse for professional service, or in an action for the collection of a bill for board, medicine or attendants furnished patients at any hospital in this state, or in an action for the collection of a bill for groceries and' other provisions, except the absolute exemptions and household and kitchen furniture, stoves and two cows, the value of which exclusive of absolute exemptions shall not exceed five hundred dollars ($500),. which value in case of dispute shall be determined by appraisers to be selected in accordance with the provisions of § 7120; provided this act shall not apply to accounts and debts contracted prior to the date of its passage and approval.” Comp. Laws, 1913, § 7739, as amended by chap. 128, Laws 1919. The phraseology of the statute is all-inelusivc. It purports to enumerate all the exemptions allowable in the cases enumerated. It says: — “no personal property shall be exempt from such process (execution or attachment) in an action for the collection of a bill . . . for groceries or other provisions, except the absolute exemptions and household and kitchen furniture, stoves and two-cows, the value of which exclusive of absolute exemptions shall not exceed five hundred dollars.” The language “No personal property . shall be exempt,” found in the section was first embodied in § 5526, Rev. Codes 1895. In 1901, the legislature amended the section-in certain particulars, but in no manner changed the language referred *408to; and it specifically repealed “all acts or parts of acts in conflict” with the act so adopted. Laws 1901, chap. 77.

It will be noted that under the statute only absolute exemptions and certain specified kinds of personal property are allowed to be claimed as exempt from attachment or execution in an action for the collection of a bill for groceries and other provisions. It will also be noted that moneys due for wages or salary are not exempted under the act. In other words, according to the plain words of this statute, wages or salary due to a defendant are subject to attachment or execution in actions for collection of the various kinds of claims enumerated therein. And there is, we think, no question but that is the way the statute has been construed generally by the bar and trial courts throughout the state. And it is our opinion that the legislature both in 1901 when it found occasion to deal with the specific subject of the ammtnt of exemptions to be allowed in certain designated cases intended to cover it completely, and intended that the exemptions then enumerated in chap. 11, Laws 1901, should be all exemptions allowed in the cases with rvhich the legislature was then dealing. It is, also, our opinion that the same is true of chapter 128, Laws 1921. We are wholly satisfied that the law-makers intended what they purported to say, namely, that “no personal property,” except that which they specifically enumerated should be exempt in the particular cases which the legislature then had under consideration.

In certain cases the rule prescribed by the statute resulted in hardship and injustice. Where a debtor did not possess the articles exempted by the statute, he was practically denied all exemptions, except the absolute ones. Especial hardship was imposed in cases where a creditor, holding a claim of the kind enumerated against a wage earner, resorted to garnishment. Such creditor was thereby enabled to subject the moneys due such Wage earner from his employer to the payment of any judgment which he might eventually obtain. To prevent this result many states have enacted laws providing that a certain amount of the wages or salary of a debtor shall be exempt from garnishment. § 25 O. I. p. 70, § 112. And in 1921 the legislature of this state enacted a law of this kind. The statute referred to is chapter 72, Laws 1921, and reads as follows:

“Any creditor shall be entitled to proceed by garnishment in any *409court having jurisdiction of the subject of the action against any person, including a public corporation, who shall be indebted to or have any property whatever, real or personal, in his possession or under his control, belonging to such creditor’s debtor, in the cases, upon the conditions and in the manner prescribed in this chapter. The term plaintiff is used in this chapter to embrace every judgment creditor and the term defendant a judgment debtor. Provided that the wages or salary of any person who is the head of a family and a resident of this state to the amount of $15 per week, shall be exempt from garnishment. Every employer shall pay to such person such exempt wages or salary not to exceed the sum of $15 per week of each week’s wages earned by him, when due, upon such wage earner making and delivering to such employer his affidavit that he is such head of a family and residing with the same in this state, notwithstanding the service of such writ, and the surplus only of such exempt salary or wages shall be held by the employer to abide the event of the garnishment suit. At least two days prior to the issuance of any garnishment summons the creditor shall cause demand to be served upon the debtor and the employer for the excess above the amount herein exempted. Such demand with proof of service shall be filed with the court at the time of the issuance of garnishment summons. Failure to serve or file said notice as herein provided shall render said garnishment void. The excess of wages over and above the amount herein exempted shall be held by the employer subject to such garnishment from the time of service of such demand and for five days thereafter.”

It will be noted that this statute by its terms applies to all garnishment actions instituted in this state. That is, it applies to garnishment actions in justices’ courts, in county courts having increased jurisdiction, and in district courts. This statute was enacted for a specific purpose, namely to prescribe the amount of wages or salary which should be exempt from garnishment to a head of a family and resident of this state in all actions.

It follows therefore that in this case the defendant is entitled to claim and receive in the garnishment action the moneys which chapter 72, Laws 1921, says he is entitled to claim and receive, and no more. And as against execution issued on the judgment in the main action *410be is only entitled to claim the exemptions prescribed by chapter 128, Laws 1919.

The order of the district court setting the garnishment action for trial, and permitting defendant to defend under § 7782, Comp. Laws, 1913, is set aside, and the cause is remanded for further proceedings according to law and not inconsistent with the views expressed in this opinion.

Birdzell, Ch. J., and BobiNsoN, J\, concur.