347 P.2d 424 (Kan. 1959), 41504, Miller v. Keeling

• Citation: 185 Kan. 623,347 P.2d 424
• Docket Number: 41504.
• Date: 12 December 1959
• Parties: Edwin P. MILLER, d/b/a Miller Credit Service, Appellee, v. A. P. KEELING, Appellant.
• Court: Kansas Supreme Court

Page 424

347 P.2d 424 (Kan. 1959)

185 Kan. 623

Edwin P. MILLER, d/b/a Miller Credit Service, Appellee,

v.

A. P. KEELING, Appellant.

No. 41504.

Supreme Court of Kansas

December 12, 1959

Rehearing Denied Jan. 27, 1960.

Syllabus by the Court

1. The provision of our statute (G.S.1949, 60-3495) which precludes garnishment of a portion of the earnings of a judgment debtor in the manner and under the conditions set forth in such section, where the creditor sells, assigns, sends or delivers the account to a collector or collecting agency for collection, is not invalid as being violative of the 'equal protection of the laws' clause of the fourteenth amendment to the federal constitution or of section 1 of the bill of rights of the Kansas constitution.

2. A creditor assigned its account against defendant to a collection agency which in turn brought suit and obtained a judgment against defendant based on the account. Plaintiff collection agency then sought to garnish wages owed to defendant by third persons for whom defendant was working. Defendant was married and the head of a family supported wholly or partly by his earnings. Held: Plaintiff collection agency, being the assignee of the account upon which the judgment was based, was

Page 425

not entitled to maintain the garnishment proceeding, and defendant's motion to quash the same was erroneously overruled.

Frank G. Spurney, Belleville, was on the brief for appellant.

Charles A. Walsh, Concordia, argued and cause and was on the brief for appellee.

[185 Kan. 624] PRICE, Justice.

The question here involves the validity of that provision of our statute (G.S.1949, 60-3495) which precludes garnishment of a portion of the earnings of a judgment debtor where the creditor sells, assigns, sends or delivers the account to a collecting agency for collection.

The trial court held the provision in question to be unconstitutional and void.

Defendant judgment debtor has appealed.

The facts are not in dispute.

Defendant was indebted to the Nu-Tone Products Co. on an open account. The company sold and assigned the account to plaintiff collection agency. Plaintiff brought suit on the account in the county court of Republic county and recovered a judgment against defendant in the amount of $115.29. Plaintiff then filed an affidavit for garnishment and sought to garnish defendant's wages owed to him by the Umbergers for whom defendant was then working.

Defendant filed a motion to quash the garnishment proceeding on the grounds that (1) as plaintiff was the assignee of the account sued on the remedy of garnishment was, under the provisions of G.S.1949, 60-3495, not available to it, and that (3) defendant was married and the head of a family.

This motion to quash was sustained by the county court--whereupon plaintiff appealed to the district court.

At this point reference should be made to two of our execution and garnishment statutes.

G.S.1949, 60-3494, pertaining to the application of property of a judgment debtor toward satisfaction of the judgment, provides, in part, that the earnings of a debtor who is a resident of this state, for his personal services at any time within three months [185 Kan. 625] next preceding the order, cannot be 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, except as provided in G.S.1949, 60-3495.

G.S.1949, 60-3495, pertaining to the exemption of personal earnings of heads of families from attachment or garnishment, provides, in material part, that ten per cent and court costs not to exceed $4, and no more, of the earnings of a debtor who is a resident of the state, for his personal services at any time within three months next preceding the issuing of any attachment or garnishment process, may be taken and applied to the payment of his debts when it is made to appear by the debtor's affidavit, or otherwise, that the remainder of such earnings above the ten per cent and court costs not to exceed $4 are necessary for the maintenance of a family supported wholly or partly by his labor. The section also contains this proviso:

'That if any person, firm or corporation sells or assigns his account to any person or collecting agency, or sends or delivers the same to any collector or collecting agency for collection, then such person, firm or corporation or the assignees of either shall not have nor be entitled to the benefits of this act.'

In other words, under the conditions specified therein, 60-3494 exempts from execution and garnishment the wages of a judgment debtor, except as provided in 60-3495, which, as has been stated, specifies conditions under which a judgment creditor may have garnishment process against certain earnings of the judgment debtor, subject to the specific...