Giesy-Walker Co. v. Briggs

• Decision Date: 30 December 1916
• Docket Number: 2926
• Court: Utah Supreme Court
• Parties: GIESY-WALKER CO. v. BRIGGS (INTERMOUNTAIN REALTY CO., Garnishee)

162 P. 876

49 Utah 205

GIESY-WALKER CO. v. BRIGGS (INTERMOUNTAIN REALTY CO., Garnishee)

No. 2926

Supreme Court of Utah

December 30, 1916

Appeal from District Court, Third District; Hon. M. L. Ritchie Judge.

Action by the Giesy-Walker Company, a corporation, against James I Briggs, wherein, after judgment, plaintiff sued out writ of garnishment and attached certain money in the hands of the Inter-Mountain Realty Company. From a judgment requiring the garnishee to pay plaintiff an amount, further ordering that the garnishee pay plaintiff another amount when it became due, Briggs, the judgment debtor, appeals.

Judgment reversed and cause remanded with directions.

S. P Armstrong for appellant.

APPELLANT'S POINTS.

The rights of the garnishee, as well as of both judgment debtor and creditor, are determined by the situation or status existing at the time of levy of the garnishment. (14 A. & E. Enc. L., pp. 835-6. 18 Cyc. 1485 [notes 24, 25].) The amount of moneys due at the time of service of garnishment governs the exemption, regardless of what the judgment debtor has previously had. (Bliss v. Smith, 78 Ill. 362; Chandler v. Shite, 71 Miss. 161, 163; Hall v. Hartwell, 142 Mass. 447; Waite v. Franciola, 90 Tenn. 191, 193.) It does not appear from the record that appellant owns other property; but if such is the fact, it does not deprive him of his right to exemption of the land that he has claimed as his homestead exemption. (18 Cyc. 1386 [3], 1478 [note 55-56]; Megehe v. Draper, 21 Mo. 510, 64 Am. Dec. 245; Lockwood v. Younglove, 27 Barb. 505-8; State v. Finn, 8 Mo.App. 261, 264.) It is the privilege, if not the duty, of the garnishee to make defense of exemption; and when notified, it is the duty of the judgment debtor to appear and establish his exemption. (2 Wade Attach. & Gar., Sec. 373, 395, 398, 401, 409 [note 14]; 20 Cyc. 1079 [7], 1086, 1143; Crisp v. Railway, 98 Mich. 648.) When it appears that the money garnished is the proceeds of sale of homestead, the garnishment proceedings are at an end. (2 Wade Attach. & Gar., Sec. 409 [note 7]. Appellant, being the defendant in the main action, and having claimed the funds garnished, as exempt, may appeal from the order denying his motion to discharge the garnishment, and from the order and judgment against the garnishee, directing the garnishee to pay the funds to plaintiff, or into court. (C. L., Sec. 3113; Rood Garn., Sec. 403, 406; 3 C. J., p. 510, Sec. 344 [note 87]; p. 552, Sec. 392 [note 38]; Deering v. Richardson-Kimball, 41 P. 801 ; Kelly v. Edmunds, 105 Ala. 619; Rayford v. Faulk, 154 Ala. 285, 288; Wilson v. Bartholomew, 45 Mich. 41; Carlyle v. Smith, 36 Kan. 614 ; Wigwall v. Mining Co., 37 Ia. 129; Webster v. Lowell, 2 Allen 123, 124; 20 Cyc. 1138 [note 92]

E. L. Mecham and John M. Bowman for respondent.

Burton W. Musser for respondent garnishee.

FRICK J. McCARTY, J., concurring. STRAUP, C. J., concurring in the result.

OPINION

FRICK, J.

The Giesy-Walker Company, hereafter called company, recovered a judgment against James I. Briggs, hereafter styled appellant, for the sum of $ 394.20, including costs. The company in due time sued out a writ of garnishment and attached certain money in the hands of the Inter-Mountain Realty Company, hereafter designated garnishee, which, it was alleged, said garnishee owed the plaintiff. In view that dates are entirely immaterial, we shall omit all of them.

The garnishee in its answer admitted that it had in its possession belonging to the appellant the sum of $ 510.66, and that $ 110.66 of that amount was due, and also stated when the remainder would become due.

The facts respecting the sale of appellant's homestead, the amount he sold it for, the amount of cash received by him, and the deferred payments are not in dispute, and in substance are as follows: Appellant owned three parcels of land, which, it is not disputed, constituted his homestead. One of the parcels he sold for $ 3,850. On that parcel there was a mortgage of $ 1,400, which the purchaser assumed and agreed to pay. This left appellant an equity in that parcel of $ 2,400. Appellant had received in cash as part payment on said parcel the sum of $ 850. There was therefore an unpaid balance due appellant upon the first parcel of $ 1,600, which was payable in installments. The second parcel owned by appellant was of the value of $ 1,800, on which there was a mortgage of $ 1,100, leaving an equity of $ 700 in appellant which was owing to him. He also owned another parcel of the agreed value of $ 200, the full amount of which was owing to him. The appellant's equities which he had sold in all of the said parcels of land thus amounted to the sum of $ 3,350. Of this he had received $ 850 in cash prior to the serving of the writ of garnishment upon the garnishee. The appellant appeared in the garnishment proceeding and claimed the whole amount of said $ 510.66 admitted by the garnishee to be owing to him as exempt by virtue of the provisions of Comp. Laws 1907, Sections 1147, 1154 and 1158.

The district court found that the garnishee was indebted to the appellant in the sum of $ 510.66; that $ 110.66 thereof was due when the writ of garnishment was served, and that the remainder was not yet due. The court also found that no part of said $ 510.66 was exempt, and entered judgment requiring the garnishee to pay to the company said $ 110.66 forthwith, and further ordered that the garnishee to pay the company the remainder of said $ 510.66 when the same became due.

Appellant, being dissatisfied with the judgment and order of the court, prosecutes this appeal.

Counsel for respondent has filed a motion to dismiss the appeal upon two grounds: (1) That, in view that the garnishee is satisfied with the judgment, the appellant may not appeal; and (2) that the judgment of the district court is not final, and hence not appealable. We are of the opinion that neither ground of the motion is well taken.

That the judgment debtor in the original action has the right to appeal in case judgment is rendered against the garnishee, although such garnishee is satisfied with the judgment and fails or refuses to appeal, has been passed on in the following cases: Sinard v. Gleason, 19 Iowa 165; Kalisky v. Currey, 68 Tenn. 214; and Reid v. Moore, 12 Ga. 368. In the Iowa case it is said:

"The principal defendant (the judgment debtor) may appeal from a judgment against a garnishee."

The ruling was made although the garnishee failed to appeal in that case and was satisfied with the judgment. The other two cases referred to are also precisely in point upon that question and are against counsel's contention. These cases are therefore decisive of appellant's right to appeal. The contention that appellant's only remedy is to institute a separate action for the purpose of determining whether the money claimed by him is exempt or not and to recover judgment in such an action if it be held to be exempt is not tenable. True, we held in Hansen v. Mauss, 40 Utah 361, 121 P. 605, that in case exempt property or money is taken on execution or attachment and is applied in satisfaction of a judgment without the consent of the judgment debtor he may in a proper action recover the value of the exempt property or the amount of the money thus taken and applied. In that case the judgment debtor did not appear in the garnishment proceedings and was not made a party thereto, and hence the only remedy he had to protect his rights was a separate action against those who, contrary to law, converted his exempt property to their own use. Here, however, the appellant was made a party to the garnishment proceedings, and there is no valid reason, and counsel has suggested none, why he should not be permitted to determine his right to the money in this proceeding.

Moreover, counsel's concession that appellant can prosecute an independent action is tantamount to saying that the judgment in this case is final and appealable. This brings us to the real question to be decided.

As pointed out, the conceded facts are that appellant was the owner of a homestead of the gross value of $ 5,850. There were mortgage liens on the homestead amounting to the sum of $ 2,500. By deducting these liens from the value of the homestead it left appellant an equity therein of the value of $ 3,350. He, under the provisions of our statute, was entitled to homestead exemption of $ 2,750. His equity in the homestead thus exceeded his right of exemption to the amount of $ 600. The appellant had also received the sum of $ 850 as part of the proceeds of the sale of the homestead before the writ of garnishment was served. He contends that that sum should be deducted from the value of his equity, to wit, $ 3,350, and if that be done, then the amount still owing to him as proceeds of the sale of his homestead only amounts to $ 2,500, which is $ 250 less than is allowed him under the statute as exempt.

Section 1158, under which appellant claims, reads as follows:

"When a homestead is conveyed by the owner thereof, such conveyance shall not subject the premises to any lien or incumbrance to which it would not be subject in the hands of the owner; and the proceeds of the sale thereof, to the amount of the exemption existing at the time of sale, shall be exempt from execution or other process for one year after the receipt thereof by the person entitled to the exemption.

That section, when construed in connection with the provisions of other sections relating to a forced sale of the homestead in case the value thereof exceeds the amount the owner is entitled to claim as exempt, seems quite clear and free from doubt. In the other sections referred to it is, in substance provided that in case the homestead exceeds in value the...