Emerson v. Emerson
| Decision Date | 03 April 1928 |
| Docket Number | Case Number: 18049 |
| Citation | 130 Okla. 140,265 P. 1078,1928 OK 226 |
| Parties | EMERSON v. EMERSON. |
| Court | Oklahoma Supreme Court |
¶0 1. Exemptions--Statutory Exemption of 75 Per Cent. of Current Wages or Earnings for Personal or Professional Services--Forfeiture of Debt by Issuance of Process to Subject to Payment More Than 25 Per Cent. Under section 6596, C. O. S. 1921, no process issued in any court to subject current wages or earnings for personal or professional services shall include more than 25 per cent. thereof, and anyone violating said provisions, either personally or by agent, shall forfeit the entire debt and no court in this state shall have jurisdiction to enforce the same.
2. Same--Meaning of "Process." The word "process," as used in statutes, varies according to the context, subject-matter, and spirit of the statute in which it occurs. Generally, it means the writ, notice, or other formal writing issued by authority of law, for the purpose of bringing the defendant into a court of law to answer plaintiff's demand in a civil action, although in a more enlarged signification the term is frequently applied to all the proceedings of any court.
3. Same--Debt not Forfeited by Failure of Garnishment Affidavit to Specifically Exempt 75 Per Cent. of Wages Where Summons Seeks but 25 Per Cent.Where the garnishment summons seeks to recover but 25 per cent. of current wages, the failure of the affidavit for garnishment to specifically exempt 75 per cent. of such wages is not sufficient to forfeit the entire debt or obligation sought to be satisfied, as authorized by section 6596, C. O. S. 1921, for the reason that said affidavit is not process, as referred to in said section.
John M. Holliman, W. E. Hudson, and T. A. Aggas, for plaintiff in error.
E. M. Connor, for defendant in error.
¶1 The plaintiff in error, Jessie M. Emerson, secured a judgment in the common pleas court of Tulsa county on the 17th day of November, 1925, against Dolphe E. Emerson for the sum of $ 740 and interest, due her by reason of a judgment for support money for the minor child of the parties, theretofore rendered in the state of Missouri. Thereafter, at various times, the plaintiff in error caused to be issued out of said court writs of garnishment in aid of execution against the defendant in error and the Mid-Continent Petroleum Corporation, the employer of the defendant in error. On June 15, 1926, plaintiff in error filed another such affidavit for garnishment after judgment directed to said defendant in error and the employer, as aforesaid.
¶2 Affiant states in said affidavit that she believes that the Mid-Continent Petroleum Corporation is indebted to said defendant and has in its possession, or under its control, property, real or personal, belonging to said judgment debtor, Dolphe E. Emerson, which indebtedness or property is not, by law, exempt from seizure or sale upon execution, but said affidavit does not specifically exempt 75 per cent. of the personal wages belonging to the defendant.
¶3 Pursuant to said affidavit, the clerk of said court issued a garnishment summons directed to said parties, which was duly served. Said summons specifically provided that, "plaintiff seeks to recover but 25 per cent. of current wages." The Mid-Continent Petroleum Corporation filed answer admitting that they were indebted to the defendant in the sum of $ 83.20 for personal services rendered during the last 90 days, of which amount 75 per cent. was exempt from garnishment under the laws of this state and that said company was holding 25 per cent. of said amount, or $ 20.80, subject to the further order of the court.
¶4 The defendant in error filed motion to cancel and satisfy said judgment on the grounds that said affidavit "sought to include more than 25 per cent. of defendant's wages and personal earnings." Thereafter, on June 23, 1926, the court sustained the motion of the defendant to cancel and satisfy said judgment and to discharge the garnishee. Plaintiff in error then asked the court for leave to amend the affidavit for garnishment, which request was refused by the trial court. The plaintiff has duly perfected her appeal and for reversal of said judgment contends that the trial court erred in refusing to permit her to amend her affidavit in garnishment and erred in sustaining the motion of defendant in error to cancel and satisfy said judgment.
¶5 The judgment of the trial court seems to have been based upon section 6596, C. O. S. 1921, and the failure of the garnishment affidavit to specifically exempt 75 per cent. of the personal wages of the defendant. Said section provides as follows:
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...of the defendant, and had rendered a judgment against it in the action. ¶3 A writ of garnishment in process. Emerson v. Emerson (1928) 130 Okla. 140, 265 P. 1078. And the rule that defects or irregularities in process which go to the form rather than to the substance are not jurisdictional ......
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