concurs.
I feel that some comments should be made relative to the argument of counsel for appellee and his cited authorities in support of no exemption.
Volume 25 of Corpus Juris, page 97,, is referred to, wherein the following appears:
“According to the weight of authority a debtor is not entitled to claim an exemption against a judgment recovered by his wife for maintenance or alimony.”
Note 36 thereunder cites the following cases to support the text:
Bates v Bates, 74 Ga. 105.
Menzie v Anderson, 65 Ind. 239.
Pearson v Pearson, 166 Ky. 91, (178 S.W. 1164).
Spengler v Kaufman, 43 Mo. Ap. 5.
Zwingmann v Zwingmann, 150 App. Div. 358, (134 N.Y.S. 1077).
Monck v Monck, 184 App. Div. 656, (172 N.Y.S. 401).
Valentine v Williams, 159 N.Y.S. 815, affirmed 177 App. Div. 931 (161 N.Y.S. 1148).
An examination of the above cases will disclose that the text may not be given as extended an application- as its language might indicate. In most, if not all of the cases, the language of the exemption statute in- the several states had a direct effect on the legal pronouncement. This becomes very important in view of the fact that the Ohio Homestead Exemption Statute is very broad.
In suostance, §11738 GC provides that husband and wife living together, etc., and not the owner of a homestead, in lieu thereof may hold exempt from levy and sale, etc.
In Bates v Bates (Ga.) supra, the exemption was claimed because the amount due from the garnishee was due the husband for his daily, weekly and monthly wages as a school teacher. Tire court held that such wages were not exempt from garnishment. In the opinion the court makes the further observation that the claim of the divorced wife for alimony occupies a different position from an ordinary debt. The Georgia statute is not set out in the opinion, but I think it is inferable from the language used by the court that it provided exemptions on judgments for debt.
In Menzie v Anderson and others, (Ind.) supra, the court denied the claimed exemption for the reason that the judgment for alimony is not a “debt growing out of or founded upon a contract express or implied” as provided by the statute.
In Pearson v Pearson, (Ky.) supra, in the statement of the case it appears that the court in entering judgment for alimony, also in order to secure its payment, decreed a lien upon certain personal property and real estate. On the question of claimed homestead the court very briefly stated that the plea is' unavailing in proceedings of this character, citing Nunn v Page, 134 Ky. 698, (121 S.W. 424).
The cited case of Nunn v Page deals entirely with judgments for costs in a divorce and alimony action, and the court held that the homestead was exempt. In this last case reference is made to the language of the homestead statute, which, in effect, reads that the homestead of the husband was exempt under §702 against any debt except mortgages, purchase money liens, etc.
In the case of Spengler v Kaufman (Mo.) supra, it appears that the husband and wife were not divorced, but were living separate and apart. The husband questioned the right to garnishee wages on the ground that such wages were paid in advance. The court held that as between husband and wife this method would not avail the hus*255band, although the rule might not apply as to process in favor of a stranger.
In the three New York cases, supra, the relation of husband and wife stilt existed, although living separately and apart. The wife had obtained judgment for alimony. Through process she sought to subject pension claims of the husband to the payment of her judgment. The claim was made by the husband that his pension was specially exempted. The court held that such exemptions were for the benefit of the family and denied the husband’s claim.
An independent research discloses the question of exemptions discussed in Volume 50 L. R. A. N. S., page 697. The case of Winter v Winter (Neb.) 145 Northwestern 709, is set out in full under which appears in the note reference to decisions of other states. This case of Winter v Winter is the strongest pronouncement in favor of appellee that I have been able to find. The syllabus reads as follows:
“Where a decree of divorce and for payment of alimony is granted the wife, the derelict husband cannot defeat the collection of alimony by remarrying and claiming the benefit of the exemption law.”
The opinion of the court was delivered by Hamer, J. The Jurist refers to many cases previously decided by the courts of Nebraska and also by courts in other jurisdictions. I am unable to conclude that the cases cited are supporting. On page 703 at the top of the second column reference is made to the Nebraska statute which in substance provides that a suit: ‘.‘for a divorce shall be conducted in the same manner as other suits in courts of equity.” Also, that: “courts shall have the power to * * * enforce its decrees as in other cases.” On page 703 the court made this further comment: “The right of exemption is based purely upon a law remedy.”
I think it is inferable that the court predicated its conclusion largely upon the equitable nature r° the action.
In Ohio an action for divorce and alimony is one at law and not in equity. In the case of Schooley v Schooley, et al., (Iowa) 169 N. W., page 56, it appears that the husband, from whom the wife had procured a divorce and judgment for alimony, had remarried. The divorced wife sought to subject by garnishment wages due the divorced husband to the payment of ner alimony judgment. The court hela that under the exemption statute the divorced husband could hold his wages rree from garnishment. The Iowa court so held, notwithstanding the language of the exemption statute which reads as follows:
“The earnings of a debtor who is a resident of a state and the head of a family for his personal services or those of his family at any time within ninety days' next preceding the levy are exempt from liability for debt.”
It will be observed that the words, “exempt from liability for debt,” differs from the Ohio Homestead Statute. The pronouncement in the Schooley case was by divided court, four to three. A dissenting opinion was written by Salinger, Judge, concurred in by two associates. The major question urged in the dissenting opinion was that an alimony judgment was not a debt. This issue was necessarily presented by reason of the language of the Iowa Exemption Statute. With, this question eliminated, I have no reason to conclude that there would have been a dissent. I have examined many other cases referred to in the decision above or in the notes to 25 Corpus Juris, page 97, and 50 L.R.A. N.S., page 697, but no particular help can be obtained by making special reference to them.
Suffice it to say that all the cases may be distinguished from the instant case either on the factual questions or a difference m the language of the statute under which exemptions are claimed.
It is my conclusion that under the very broad language of the Ohio statute granting homestead rights, or property in lieu thereof, that to hold under the facts in the instant case that the husband was not entitled to the ^ property *256levied upon in lieu of a homestead would constitute judicial legislation. Neither can I find that the pronouncements of our Supreme Court that alimony judgments are not barred by discharge in bankruptcy, and, further, that such judgments do not become dormant are at all helpful or determinative of the issue in the instant case. Nothing further need be said except to make reference to the reasoning of the Supreme Court in the cases cited.