¶0 1. Exemptions -- Garnishment -- Creditor Held not to Have Forfeited Debt by Garnishing Wages.
Record examined, and it is found that the evidence sustains the judgment of the trial court refusing to cancel the debt due from plaintiff in error to defendants in error.
2. Same.
The legislative act contained in chapter 188, Session Laws 1915, prescribing a forfeiture of the "entire debt, judgment, or obligation sought to be satisfied" for a violation of its provisions, under the evidence in this case, was not violated. The decision of the lower court is affirmed.
Appeal from District Court, Choctaw County; Earl Welch, Judge.
Action by Robert Sutherland and another, partners, against H. L. Davies. From the judgment, defendant appeals. Affirmed.
KORNEGAY, J.
¶1 This case comes from the district court of Choctaw county. The only point involved in it is whether or not the defendants in error, by virtue of trying to collect their judgment, in the court below, by proceeding in aid of execution, subjected themselves to a forfeiture of their judgment because of the provisions of chapter 188, Session Laws of 1915, which is as follows:
"Sec. 1. That the sixteenth clause of section 3342 of chapter 34, defining the exemptions of householders, of Revised Laws of Oklahoma 1910, annotated, be amended to read: 'Seventy-five per cent. of all current wages or earnings for personal or professional services earned during the last 90 days' and that the fifth clause of section 3345 of chapter 34 of Revised Laws of Oklahoma 1910, annotated, defining the exemptions of persons not heads of families, be amended to read: 'Seventy-five per cent. of all current wages or earnings for personal or professional services.' Provided, however, that no process issued in any court to subject such wages or earnings for personal services to satisfy any judgment or obligation, shall ever include more than 25 per cent. of such wages, or personal earnings, and any person, firm, association, or corporation, either personally or by agent or attorney violating any provision of this act shall forfeit the entire debt, judgment or obligation sought to be satisfied, and no court in the state of Oklahoma shall ever have jurisdiction to enforce collection of any such claim, judgment, or obligation in any case in which the provisions of this act have been violated."
¶2 This is in the Compiled Oklahoma Statutes of 1921 as section 6596. There seems to be no dispute about the facts. The defendants in error had a valid judgment against the plaintiff in error in that court. They had recovered the judgment some years ago, and the defendants in that case took it to this court; and this court affirmed it, and then, under the judgment, the lower court sold the property, on which the plaintiffs had a materialmen's lien, and there was a balance due on the judgment and an execution was sued out on the judgment, and the execution was returned "no property found." When this was done the attorney of the plaintiffs, in endeavoring to collect the judgment, filed in the court what was styled as an affidavit for garnishment after judgment, execution returned unsatisfied.
¶3 In that affidavit he recited the proceedings leading up to the judgment, and the sale of the property, and the applications of the proceeds, and a subsequent suing out of execution, and return of "no property found." The latter part of the affidavit is as follows:
"Affiant further says that he and the said plaintiffs have good reason to believe and do believe that the St. Louis-San Francisco Railway Company, a corporation, has property of the said H. L. Davies in its possession and control and is indebted to the said H. L. Davies, and said plaintiffs are desirous of having an order issued by the clerk of this court requiring said St. Louis-San Francisco Railway Company, a corporation, to answer in the time prescribed by law, the interrogatories numbered 1 to 4, inclusive, hereto attached.
"Affiant further says that it is not sought by this proceeding to subject to the payment of said judgment in favor of plaintiffs, more than 25 per cent. of any wages or earnings for personal services of the said debtor, H. L. Davies."
¶4 Pursuant to such filing, an order was signed by the clerk in accordance with section 753, C. O. S. 1921, as follows:
"753. Order to Appear in Garnishment. When an execution shall have been returned unsatisfied, the judgment creditor may file an affidavit of himself, his agent or attorney, in the office of the clerk, setting forth that he has good reason to, and does, believe that any person or corporation, to be named, has property of the judgment debtor, or is indebted to him, and thereupon the clerk shall issue an order, requiring such person or corporation to answer, on or before a day to be named in the order, not less than ten nor more than 20 days from the date of issuing the same, all interrogatories that may be propounded by the judgment creditor, concerning such indebtedness or property."
¶5 Interrogatories were framed in accordance with section 754, C. O. S. 1921, as follows:
"754. Interrogatories Addressed to Garnishee. The judgment creditor, or his attorney, shall prepare interrogatories concerning such indebtedness or property, a copy of which shall be served on the garnishee at the time of the service of the order, or within three days thereafter. And the garnishee shall, on or before the day required in the order, file with the clerk full and true answers to all such interrogatories, verified by his affidavit."
¶6 The order to the railway company, omitting the caption, is as follows:
"You are hereby required to file with the undersigned clerk of the district court of Choctaw county, Okla., on or before the 25th day of February, 1929, full and true answers to all the attached interrogatories propounded by Robert Sutherland and Mae G. Sutherland, partners doing business under the firm name and style of Sutherland Lumber Company, judgment creditor of the said defendant, H. L. Davies, in the above entitled action, duly verified by affidavit, as required by law, and in case of your failure so to do, you will be liable to further proceedings according to law. Of which the said defendant, H. L. Davies, will also take notice.
"Witness my hand and seal of said court at my office in the city of Hugo, in Choctaw county, state of Oklahoma, this 13th day of February, A. D. 1929.
"Signed:
J. G. Wilkins,
"Court Clerk of Choctaw County, State of Oklahoma
"By B. D.
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