Dickinson v. Johnson

• Decision Date: 06 March 1901
• Parties: DICKINSON v. JOHNSON et ux. [1]
• Court: Kentucky Court of Appeals

61 S.W. 267

110 Ky. 236

DICKINSON v. JOHNSON et ux. ^[1]

Court of Appeals of Kentucky.

March 6, 1901

Appeal from circuit court, Jefferson county, chancery division.

"To be officially reported."

Action by John Dickinson against William P. Johnson and wife to enforce a judgment. Judgment for defendants, and plaintiff appeals. Reversed.

W. W Thum and Stanley E. Sloss, for appellant.

Kohn Baird & Spindle, for appellees.

GUFFY J.

The appellee William P. Johnson is, and has been for several years, clerk of the Jefferson county court, entitled to a salary, payable by the state, amounting to $5,000 per annum. The other appellee is his wife. Some time prior to the institution of this action the appellant obtained a judgment in the Jefferson circuit court against the said William P Johnson for the sum of $3,313.12, with interest from August 1897, upon which judgment execution was issued to the proper county, which was returned by the sheriff, in substance, "No property found." The object of this action is to enforce the collection of said judgment. The two principal funds or items of property sought to be subjected are a reasonable portion of appellee's salary and certain real estate in Jefferson county which is alleged to have been purchased and paid for, to the extent that it has been paid for at all, by the said William P. Johnson, but that the same was conveyed to the wife, Emma Johnson, for the purpose of delaying, hindering, and defrauding the creditors of the said William P. Johnson. It is also alleged in the petition that William P. Johnson, Jr., a son of the said appellee, and a minor, is working for a salary of $2,000. The prayer of the plaintiff, in substance, is for an attachment against the property of said William P. Johnson, and that he be compelled to make a discovery of any money, choses in action, or legal and equitable interests, or any other property, and the amount of same, and to disclose when and in what sums and how the salaries of himself and son are collected, and that so much of the said property be subjected to the satisfaction of plaintiff's claims as is necessary, and that the real estate and improvements be adjudged the property of said William P. Johnson, and that the same be subjected to the satisfaction of his debt, and that out of his salary he be required to provide for and pay this judgment, and for all proper and equitable relief, general and special. The answer of the appellees, after denying that either Johnson or any of his family are living upon or occupying the ground or premises described in the petition, states, in substance, that the title to the property was not placed in the said Emma for the purpose of delaying creditors, and that appellee William should not be required to set apart any of his salary for the payment of plaintiff's debt. The answer further avers, in substance, that the salary is paid to him for services as clerk of the Jefferson county court, and that he has no interest or right over any part of the salary paid to his son William P. Johnson, Jr., or that he exercises or ever has exercised any right to said salary, and that he would not have any right so to do. It is then further stated that, long before the giving of the note upon which the judgment was rendered, he was indebted to his wife in the sum of more than $20,000, and long before the transfer of the land; that he is now county clerk as aforesaid, and that under and by virtue of the laws of Kentucky the said salary is exempt from execution, attachment, or garnishment; that, in part satisfaction of his indebtedness to the said Emma, he did assign and transfer the salary to be paid to him to her, the said Emma, and out of said salary so transferred the said Emma made the payments that have been made on the property, etc. It is also claimed that they have been occupying the same as a home, and only temporarily absent. The reply may be considered a complete traverse of all the matters relied on as a defense. Upon final hearing the court adjudged in favor of the appellees, and from that judgment this appeal is prosecuted.

It is the contention of appellee that under no state of case could he be required to set apart any part of his salary for payment of the debt in question. He also contends that he had received, many years before he incurred the debt sued on, a large amount of money from his wife, and that he had a right to pay the same to her, either by an assignment of the salary, or by having the land in question conveyed to her. The appellant contends that, after allowing the said appellee Johnson a sufficient amount of the salary to support himself and family in a style commensurate to his surroundings and social position, he should be required to set apart annually, or from time to time as his salary is paid, the surplus, to be applied to the payment of the judgment sued on. Appellant further contends that the money received by appellee from his wife was not an indebtedness of appellee, and that the payment for the real estate in question was in fact and law paid for by or with appellee's money, and therefore the real estate is liable or ought to be subjected to the payment of plaintiff's claim. It is further contended by appellant that the question involved as to the salary has never been passed upon by this court; that the decisions heretofore rendered where parties sought to garnish fees or salaries of officers have no application to the question involved in this case. It is not contended that the plaintiff could attach salaries in the hands of the state or its officers, and require the money to be paid directly to the plaintiff, but it is contended that the court may lawfully require the appellee to pay into court or to its receiver, in installments, so much of the salary as is not necessary for his support as aforesaid. Many authorities are cited by appellant.

We are not aware of any decisions of this court in which the precise question here presented has ever been passed upon, nor do we find any statute expressly providing that officers' fees or salaries shall not be subjected to the payment of debts against them. But it is very earnestly contended for appellee that various decisions of this court announce the doctrine that it is contrary to public policy to so subject the fees or salaries of officers. But, as before intimated, the appellant contends that no such rule or doctrine is contained in any of the decisions in this court, and refers us to many decisions which, as he assumes, sustain his contention. We will now proceed to notice some of the authorities from states other than Kentucky relied on in support of appellant's contention: Pendleton v. Perkins, 49 Mo. 565, is cited. The court in that case held that notwithstanding municipal corporations are exempt by statute from creditors' bills or garnishment, nevertheless money due the defendants in the city treasury might be subjected by proceedings in equity for the payment of plaintiff's claim. But from the opinion in this case we find that the debtor was not an officer. And it seems that, even in the absence of such statute, it has been held that towns and cities could not be garnished for a sum due an officer as part of his salary. Fortune v. City of St. Louis, 23 Mo. 239; Hawthorn v. Same, 11 Mo. 59. The court further said: "Public policy forbids creditors from thus stepping in between the city and its public servants; and a statute, in seeking to prevent any future attempt in that direction, went much further, and included all kinds of liabilities, so that a debtor's funds, if in the hands of a municipal corporation, are placed beyond the reach of his creditors by statutory garnishment." The court, however, held in this case that the funds of the debtor were not exempt simply because the same are placed in the city treasury, or under the control of the city. Dill. Mun. Corp.§ 101, is also cited, together with the notes. We are unable to see that either the author or the notes sustain appellant. The weight of authority referred to by the writer, as well as his own opinion, seems to be, even in the absence of statute, that municipalities are not subject to garnishment for the salaries of its officers. The case of Luthy v. Woods, 1 Mo. App. 167, holds that, although a municipality is not subject to garnishment, a debt due from it to a debtor may be reached by proceedings in equity, and subjected to the payment of plaintiff's claim, although the municipality is not subject to garnishment. But it does not appear in this case that the debt there subjected was the salary of an officer. We are unable to see that the opinion in McDermutt v. Strong, 4 Johns. Ch. 690, has any bearing upon the case at bar. In Lyell v. Board, 3 McLean, 580, Fed. Cas. No. 8,621, the plaintiff sought to subject certain bonds, mortgages, and assets under the control of defendants for payment of two judgments at law recovered against them. The court below sustained a demurrer, but the supreme court reversed the judgment, and, after a discussion of the questions involved, from which it appears that under the statute of Michigan the county might be sued, said: "The county being made subject to a suit, no serious objection is perceived against reaching the rights in question by the ordinary exercise of chancery powers, independently of statutory provisions." It appears from the opinion in Furlong v. Thomssen, 19 Mo.App. 364, that the court held that a debt due by a municipal corporation to its creditor may, by a creditors' bill, be subjected to the satisfaction of judgment against the latter. In this case it appears that the debt due Thomssen was for erecting an engine house for the city. In Browning v. Bettis, 8 Paige, Ch. 568, it is, in substance, held that the...