Dowling v. Wood

• Citation: 101 N.W. 113,125 Iowa 244
• Parties: DOWLING & ALLGOOD v. WOOD.
• Decision Date: 20 October 1904
• Court: United States State Supreme Court of Iowa

125 Iowa 244

101 N.W. 113

DOWLING & ALLGOOD

v.WOOD.

Supreme Court of Iowa.

Oct. 20, 1904.

Appeal from District Court, Dallas County; J. H. Applegate, Judge.

Action was brought before a justice of the peace, aided by an attachment, to recover an indebtedness of $40.98. Defendant moved for release of money attached by garnishment in the hands of the Chicago, Milwaukee & St. Paul Railway Company on the ground that he was a married man, and that the sum for which the railroad company was garnished was due him as personal earnings, and therefore exempt under the provisions of Code, § 4011. By way of resistance to this motion it was alleged for the plaintiffs that the action was instituted and the railway was garnished at the request of the defendant, and that the expense of instituting the action had been incurred in reliance upon such request. The justice overruled a motion to strike this resistance, whereupon the defendant, on writ of error to the district court, secured a reversal of the rulings of the justice of the peace, and from the action of the district court in holding the resistance to be insufficient plaintiffs appealed, a certificate of appeal being allowed by the trial judge. Reversed.Giddings & Winegar, for appellants.

White, Clarke & Clarke, for appellee.

McCLAIN, J.

The case presented upon this appeal is simple, though it may not be easy of solution. Code, § 4011, provides that the earnings of a debtor, who is a resident of the state and the head of a family, for his personal services or those of his family, at any time within 90 days next preceding, are exempt. The question is whether the debtor himself may by his act or agreement waive the right subsequently to interpose this exemption in a garnishment proceeding. It is first argued that, as the exemption is to the head of the family, the personal act or agreement of the debtor himself will not be effectual as a waiver thereof depriving the family of the benefit of the exemption. But the difficulty with this contention is that the debtor may collect his earnings, and dispose of them as he pleases, and no legal reason is readily apparent why he cannot contract with reference to such earnings. It has been held that a contract made at the time indebtedness is incurred by which exemption is waived as against such indebtedness is invalid, as contrary to public policy. Curtis v. O'Brien, 20 Iowa, 376, 89 Am. Dec. 543. And there are cases to the effect that a subsequent...