Home Savings & Loan Association v. Carrico
| Decision Date | 31 March 1932 |
| Docket Number | 28223 |
| Citation | 241 N.W. 763,123 Neb. 25 |
| Parties | HOME SAVINGS & LOAN ASSOCIATION, APPELLANT, v. FRED L. CARRICO, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Adams county: LEWIS H BLACKLEDGE, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. An employee is one bound, in some degree, to the duty of service, and who is subject to the master's command as to how to do the work. The word " employ" carries with it the idea of a contract, and employee includes only such persons engaged in the service of another as are under contract of hire, express or implied, oral or written.
2. An employee is one who works for an employer for a salary or wage, and usually applies to clerks, workmen, and sometimes laborers, but very rarely applies to the officers of an employer.
3. A public officer is an incumbent of a public office, which is the right, duty and authority conferred by law, by which, for a given period, an individual is invested with some portion of the sovereign functions of government for the benefit of the public.
4. Under the facts in this case, an attorney, assigned by the court to defend an indigent defendant, is not an employee or officer of the county in which such service is being performed, but such services are paid for by the county as one of the necessary expenses and costs of a felony trial.
Appeal from District Court, Adams County; Blackledge Judge.
Action by the Home Savings and Loan Association against Jennie L. Carrico and another, wherein a writ of garnishment was served upon Adams County. From a judgment dismissing and dissolving the garnishment, the plaintiff appeals.
Affirmed.
Perry W. Morton, George E. Hager and James E. Addie, for appellant.
Stiner & Boslaugh, Carrico & Carrico and Herman G. Schroeder, contra.
Heard before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY, DAY and PAINE, JJ.
This is an action at law, in which the appellant seeks to reach by garnishment process the sum of approximately $ 1,000, allowed the appellee, Fred L. Carrico, as attorney's fee for defending Sidney A. Trobough, an indigent defendant, in a homicide case, the same to be credited upon a deficiency judgment secured against said Carrico in a foreclosure action. The district court dismissed and dissolved the garnishment.
On October 26, 1929, the appellant secured a deficiency judgment for $ 2,931.15, with 10 per cent. interest, against Jennie L. Carrico and Fred L. Carrico, growing out of the foreclosure of a mortgage upon certain residence property in Adams county. Upon June 9, 1931, an execution was issued thereon, and returned by the sheriff nulla bona, and thereafter, upon the same day, a garnishee summons was issued against Adams county and placed in the hands of the sheriff, and served upon the chairman of the county board. Upon July 13, 1931, Adams county appeared by Herman G. Schroeder, its county attorney, and the appellant by James E. Addie, and in open court, before Judge J. W. James, it was stipulated as follows: "The county of Adams, Nebraska, garnishee in the above entitled cause, should not be required to answer until the final disposition of the appeal of Fred L. Carrico from allowance of his claim against Adams county in the sum of $ 1,000, for fees and services rendered by said Carrico as the attorney for the defendant in the case of State of Nebraska v. Sidney A. Trobough."
Upon October 17, 1931, Judge Lewis H. Blackledge entered an order, which in effect set aside the stipulation, and gave the garnishee until October 23, 1931, to file its answer, and ordered the same set down for hearing the next day, on which day the garnishee filed its answer, admitting that it was indebted to appellee, Carrico, in the sum of $ 1,000, less certain taxes owed by him to Adams county. The county attorney on the same day filed a motion to dismiss and dissolve the garnishment, for the reason that said Carrico was not an officer or employee of Adams county, and the said Carrico filed a motion to quash the garnishment. On the same day, Judge Blackledge entered the final order, in which he sustained the motion of the garnishee, Adams county, and also the motion of the judgment debtor, and directed that the garnishee be discharged from said garnishment. Within three days the appellant filed its motion for a new trial, which was overruled, and the case was appealed to this court.
At common law, salaries, fees, or other compensation due public officers and employees cannot be reached by garnishment. Owen v. Terrell, 22 N.M. 373, 162 P. 171. And in many states the compensation of public officers is not subject to garnishment, the subjection thereof to garnishment being contrary to public policy. Jaffe v. McAdory, 202 Ala. 53, 79 So. 391. But, in other states, a county is subject to garnishment if made so by express statutory provisions. State v. Tyler, 14 Wash. 495, 37 L. R. A. 207, 45 P. 31. See 60 A. L. R. 823, note.
In 1925 our legislature passed chapter 58, the title to which reads as follows: "An act to provide for garnishment of officers and employees of the state of Nebraska or any county, township, municipal corporation, municipally owned corporation, or school district." This act consisted of two sections, and appears as sections 20-1012 and 20-1013, Comp. St. 1929, and the first section provides, among other things, as follows: "This section shall apply only in case it is sought to hold and apply the earnings of such officers and employees which earnings have been earned by personal services rendered to the state or to any county, township, municipal corporations, municipally owned corporation, or school district."
We are cited to numerous authorities holding that garnishment is a remedial process and is controlled wholly by statute, and that such statutes should be liberally construed. 12 R. C. L 776, sec. 3; Drake on Attachment (7th ed.) sec. 451a; Rogers v. Omaha Hotel Co., 4 Neb. 54. It is contended that the sections of the statute herein cited, with reference to garnishment process, were enacted for the purpose of abolishing all privilege in that respect and making them subject to...
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