Hewatt v. Clark.

• Decision Date: 01 June 1940
• Docket Number: No. 4524.,4524.
• Citation: 44 N.M. 453,103 P.2d 646
• Parties: HEWATTv.CLARK.
• Court: New Mexico Supreme Court

44 N.M. 453

103 P.2d 646

HEWATT

v.CLARK.

No. 4524.

Supreme Court of New Mexico.

June 1, 1940.

Appeal from District Court, Chaves County; James B. McGhee, Judge.

Action on an account for necessaries by O. H. Hewatt against J. W. Clark. From a judgment for the plaintiff, defendant appeals.

Reversed and remanded with direction.

The language of the amended exemption statute is not ambiguous so as to require resort to the title of the act in construing it. Comp.Laws 1929, § 48-117, as amended by Laws 1937, c. 90.

G. L. Reese, Sr., of Roswell, for appellant.

H. C. Buchly, of Roswell, for appellee.

BICKLEY, Chief Justice.

There is involved in this appeal the question of what is the proper interpretation of the exemption statute applicable to a resident of the state and the head of a family, as this statute, Sec. 48-117, N.M.Comp. Laws 1929, is affected by the amendatory act hereinafter set out. Chap. 90, Laws of 1937.

There is no dispute as to the facts of the case. Appellee Hewatt obtained judgment against appellant Clark in a Justice of the Peace court upon an account for necessities of life furnished the defendant and his family in the sum of $53, and attempted to satisfy said judgment by execution upon an automobile belonging to appellant. Defendant, being a resident of the state and the head of a family and not the owner of a homestead, filed his claim of exemption. This was disallowed by the Justice of the Peace, and upon appeal and trial de novo upon an agreed statement of facts in the District Court the claim of exemption was there likewise disallowed. The trial court held that Sec. 48-117, supra, as amended by Chap. 90, Laws of 1937, now confines the right to exemption from debts for necessities of life to a certain per cent or portion of the earnings of the debtor, and that the $500 exemption heretofore recognized as allowable in lieu of a homestead no longer obtains.

Section 48-117, N.M.S.A. 1929, being section 19, Chap. 37 of the Laws of 1887, reads as follows: “Any resident of this state who is the head of a family, and not the owner of a homestead, may hold exempt from levy and sale, real or personal property to be selected by such person, his agent or attorney, at any time before sale, not exceeding five hundred dollars in value, in addition to the amount of chattel property otherwise by law exempted.”

The above section was amended by Chapter 90, Laws 1937, and in its amended form provides: “Any resident of this State, who is the head of a family and not the owner of a homestead, may hold exempt from levy and sale, real or personal property, to be selected by such person, his agent or attorney, at any time before sale not exceeding five hundred dollars in value in addition to the amount of chattel property otherwise by law exempted; Provided, However, that no exemption other than eighty per cent (80%) of the first seventy-five dollars ($75.00) of the earnings of the debtor for the thirty (30) days next prior to the service of writ of garnishment shall be allowed under the provisions of this Section where the debt sued on was incurred for the necessities of life furnished the debtor or his family, or for manual labor.”

Appellee contends that the amendatory language appearing in the late act, particularly when read in the light of the language of the title thereof, supports the trial court's conclusion that for debts incurred for necessities of life, we no longer have the five hundred item in lieu of the homestead. The title of the Act of 1937, reads: “An Act Amending Section 17, Chapter 37, Laws of 1887 (Section 48-117 of the New Mexico Statutes Annotated 1929 Compilation) Relating to Heads of Family Exemptions From Levy and Making Same Inapplicable to Debts for the Necessities of Life or for Labor.”

This act re-enacts in the exact words of the earlier statute, Sec. 48-117, supra, it will be seen, and adds thereto the additional language introduced by the phrase “provided, however.”

Appellant contends that the 1937 amendatory act was in response to the legislature's desire to narrow the right of exemption in cases of garnishment and where the debt was owing for necessities of life, and that the legislation was motivated by a desire to correct a condition pointed out by us in the cases of McFadden v. Murray, 1927, 32 N.M. 361, 257 P. 999 and Dowling-Moody Co. v. Hyatt, 1935, 39 N.M. 401, 48 P.2d 776.

In the first of the above cases we held that the exemption of property up to the amount of $500 to be selected by the debtor at any time before sale (Sec. 48-117, supra,) might be claimed out of current wages garnished, notwithstanding that under Chap. 153, Laws of 1919, the statute on garnishment, either all or a part of such wages, depending upon the circumstances, could be reached in a proceeding in garnishment. We there discussed the history of our exemption and garnishment statutes, held that exemption statutes are to be liberally construed, and stated, in declining to make a different application of the garnishment law to that made of the general exemption statute in dealing with such statutory exemptions, that “Garnishment is not a device by which exempt property may be reached.” [32 N.M. 361, 257 P. 1000.] Incidentally, we were not then considering a debt incurred for the necessities of life. We there suggested that if the legislature should consider the law as we construed it to be too liberal in behalf of wage-earning debtors, it could easily adopt a different policy. There was, in the meantime, no legislative change in this respect.

Then, after the lapse of some eight years, we again had the question presented in Dowling-Moody Co. v. Hyatt, supra, and again we held that Sec. 48-117, supra, allowing the $500 exemption in lieu of a homestead was applicable to suits in garnishment. This case, unlike the McFadden case, supra, involved an indebtedness incurred for the necessities of life. This distinction, however, did not persuade in favor of any different result. We there said: “The fact that the debt was for necessaries gave the creditor no greater right to garnishment than it gave him to garnish 20 per cent. of the wages, or the excess over $75 per month. The opinion invites a correction from the Legislature if the decision did not conform to its intent and no action has been taken by that body though eight years have passed.”

The statute on garnishment, Chap. 153, Laws 1919, Sec. 59-126, N.M.Comp.Laws 1929, which was under consideration in each of the cases above referred to, and which we held in each instance did not devitalize the plain intention of Sec. 48-117 to allow the exemption to the debtor who could qualify, whether the exempt property must come from current wages or some other class of property, reads: “No person shall be charged as garnishee, in any court in this state, on...