dissenting:
Upon the first question involved, raised by the motion to quash service, as it is in form, although perhaps it should be a motion to dismiss the proceeding in error, I am in accord with the majority of the court. I think that neither a motion to quash service nor a motion to dismiss the proceeding in error should prevail upon the grounds urged in argument, or any other that occur to me.
I desire, however, to offer a few words in explanation of my dissent from the conclusion arrived at by a majority of the court, which conclusion has led to the reversal of the judgment of the court below. The construction of Rev. Stat. 6501 (Lan. 10078) is one of much difficulty. The question is a close one, and it is not surprising that courts and attorneys differ in their views. I do not think that it is clearly provided by this statute, as Judge Haynes holds, that before bringing an action for necessaries, even if property is attached in the proceeding, there *522must be to give tbe court jurisdiction, a preliminary demand for 10 per cent of the earnings sought to be attached.
An examination of this statute discloses that it is simply a modification of previous enactments, Rev. Stat. 5430, 5441, 5483, 5548 (Lan. 8958, 8970, 9010, 9077). Without stopping to read those sections it is enough to say that they also provide for the-subjecting of 10 per cent of the earnings of the debtor to the payment of his debt for necessaries, but there is no provision in those sections that any portion of the 90 per cent remaining may be applied to the payment of costs in the suit in which the attachment was obtained. The legislature, apparently recognizing that much of the benefit of the provision in favor of a creditor suing for necessaries by reason of the giving to him of 10 per cent of the earnings would be unavailable to him if he were required to pay the costs of the proceeding out of his own pocket, provided by Rev. Stat. 6501 (Lan. 10078) that the debtor, in addition to his liability for the 10 per cent, should be further liable to the plaintiff for the actual, costs of any proceeding brought to recover the same in any sum not to exceed four dollars, the legislature carefully guarding the interests of the debtor by fixing the maximum costs which might be so taken out of his 90 per cent, and then adds this language:
“And such garnishee may pay to such debtor an amount equal to ninety per centum of such personal earnings, less the sum of four dollars for actual costs as herein provided, which shall be due at the time of the service of process or which may become due after such service and before trial, and be released from any liability to such creditor.”
That is, as had been provided in the sections before, the garnishee may pay over to the debtor 90 per cent, leaving only the 10 per cent to be applied, and he would then be exonerated from any further liability to the creditor by reason of having released all the earnings excepting the 10 per cent. But the law in Rev. Stat. 6501 (Lan. 10078) qualifies that by permitting the paying of the .costs to the maximum amount of four dollars, from the 90 per cent, and then adds: “provided further, that the person bringing an action for necessaries shall first make a demand in writing for the excess over and above ninety per centum of the personal earnings of the debtor.”
In other words, the garnishee shall be so exonerated from liability provided that the creditor has first made this demand.
.I think that there is no provision in this statute that before the beginning of an action the creditor shall make a demand. That would be something of an anomaly in our law. In other words, it would seem absurd to make a provision that a person suing for the price of nee-. *523essaries must make a demand before instituting suit in order to give the court jurisdiction, when a person suing for any other thing need make no demand in order to give the court such jurisdiction. Now, to avoid this absurdity the majority of the court, as I understand their position, think that there should be read into this statute — and there is no other way of avoiding it — some language after the words “bringing an action,” so to make it express the idea that it is considering only the ease of a person bringing an action for necessaries in which he -seeks to subject earnings or 10 per cent of the earnings of his debtor; by attachment; but that language is not found in the statute, and the construction for which I contend requires no interpolation.
My impression is, that the office of a proviso in a statute is to qualify that which goes before. Here is an enactment, not that the creditor shall make a demand before suit; but that the garnishee may be exonerated from liability provided that the demand is first made. It is a provision that the enactment of the section immediately preceding shall be operative in case of such demand, and then, in order to make the matter more clear, the statute proceeds to provide that even if the demand is made, no cost or expense shall be chargeable to the defendant •debtor if he tender, in the way provided, the amount of the excess over 90 per cent of his personal earnings.
I think that the court below was right in the construction which it placed upon the statute, and in holding that a demand was not essential to give the court jurisdiction of either the action for necessaries or the attachment proceeding. I am disposed to follow the judgment of the Cuyahoga county court, consisting of Judges Winch, Hale and Marvin, rather than that of the circuit court of Hamilton county. For convenience reference may bq made as supporting the view of the majority of the court to the case in Friedman v. Hannare, 12 Dec. 438, a decision of the Clarke county common pleas. The decision of the Cuyahoga circuit court, holding that the demand is not essential to confer jurisdiction, is reported in K. B. Co. v. Batie, 25 O. C. C. 432.
I do not know that I care to add anything to what I have already said except perhaps that the provision as to notice in a forcible detainer suit is based altogether upon a different statute and one where the phraseolgy is so dissimilar to that employed here that it seems to me it can have no application. I think that this whole section, which is amendatory of the original Eev. Stat. 6501 (see Lan. 10078), has especial reference to the matter of costs, permitting the same to be taken from the 90 per cent, with the limitation that the maximum amour; thereof shall not exceed four dollars. It seems clear to me that that was *524what was in the mind of the enactors of the section. It does not occur to me that the treatment of the clause relating to demand, as a mere proviso or qualification of what precedes it, is a technical construction. It appears to me to be the natural one, and the other construction,, which is maintained by a majority of the court, to be the one more difficult to sustain and one requiring, as I have already suggested, a, change in the phraseology of the statute.