Hodo v. Benecke

• Decision Date: 31 January 1882
• Citation: 11 Mo.App. 393
• Parties: E. D. HODO, Appellant, v. W. BENECKE ET AL., Respondents.
• Court: Missouri Court of Appeals

11 Mo.App. 393

E. D. HODO, Appellant,

v.W. BENECKE ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Jan. 31, 1882.

1. The section of the statute exempting wages for the last thirty days is not repealed by the statute giving boarding-house keepers a lien upon the wages of their guests.

2. The lien of a boarding-house keeper upon a guest's wages cannot be enforced by garnishment.

3. Where the boarding-house keeper fails to establish his lien, he is entitled to a general judgment for the debt shown to be due for board.

APPEAL from the St. Louis Circuit Court, LINDLEY, J.

Reversed, and judgment.

O. G. HESS, for the appellant.

P. LEAHY, for the respondents.

BAKEWELL, J., delivered the opinion of the court.

This was an action begun before a justice of the peace. Plaintiff alleges that he is a boarding-house keeper in the Twenty-fourth Ward of the city of St. Louis, and that defendant Benecke owes him a balance of $69 on account of six months' board to July 1, 1878, at $18 a month; and that defendant, the Missouri Zinc Company, a corporation, owes Benecke $38.40 for work and labor performed by Benecke for it. Plaintiff asks judgment against Benecke, and that the same be declared a lien upon the wages due him by the Zinc Company, and that these wages be appropriated to the payment of the indebtedness.

On trial anew in the circuit court, the facts stated in the petition of plaintiff were admitted; and it was agreed that the sum due Benecke for wages was for the last two weeks before the suit was brought. Judgment was for defendants.

The act of 1872 (Rev. Stats., sect. 3198), gives to boarding-house keepers a lien upon the baggage and valuables of their guests and boarders, brought into the hotel by the guest, and upon the wages of such guests. This lien is to be enforced as provided by the act of liens for keeping horses. Rev. Stats., sects. 3196, 3197. On referring to the latter act, it is seen that its provisions are not apt for the enforcement of a lien upon wages. The law provides that, if the lien is established, the property shall be ordered to be sold. Whether there is any way in which the right of lien upon wages can be efficaciously enforced, we need not now inquire. It cannot be enforced by garnishment, where the wages are for the last thirty days' service, because this is expressly prohibited by law. Rev. Stats., sect. 2519. We are further of opinion that the provision of section 2519 is intended to place the wages for the last thirty days beyond the reach of all creditors, and that the statute giving a lien upon wages, which is a subsequent enactment, is not meant to apply to the wages of the last thirty days. The proceeding attempted in the present case against the Missouri Zinc Company, is, in effect, a proceeding to hold that company liable as garnishee, and the circuit court rightly...