Live Stock Nat. Bank v. Jackson

• Decision Date: 17 November 1939
• Docket Number: 30769.
• Citation: 288 N.W. 515,137 Neb. 161
• Parties: LIVE STOCK NAT. BANK (SARGENT, ASSIGNEE) v. JACKSON (INTER-STATE LIVE STOCK COMMISSION CO., GARNISHEE).
• Court: Nebraska Supreme Court

288 N.W. 515

137 Neb. 161

LIVE STOCK NAT. BANK (SARGENT, ASSIGNEE) v. JACKSON (INTER-STATE LIVE STOCK COMMISSION CO., GARNISHEE).

No. 30769.

Supreme Court of Nebraska.

November 17, 1939

Syllabus by the Court.

1. " Exemption from execution or attachment of wages of a judgment debtor is controlled by section 20-1559 Comp.St.1929." Lyons v. Austin, 126 Neb. 248 252 N.W. 908.

2. " If an act is complete and independent in itself, it may amend or modify the provisions of existing statutes without controverting the provisions of the Constitution relating to amendments." Scott v. Dohrse, 130 Neb. 847, 266 N.W. 709.

3. Section 20-1559, Comp.St.1929, is a complete and independent act in itself.

Appeal from District Court, Douglas County; Leslie, Judge.

Action by the Live Stock National Bank against Truman A. Jackson wherein the plaintiff recovered a money judgment against the defendant, which was assigned to Frank Sargent. Execution was returned unsatisfied for want of property to levy on, and garnishee process was issued to the Inter-State Live Stock Commission Company. From a judgment in favor of the plaintiff and assignee, the defendant and the garnishee appeal.

Judgment affirmed.

S. L. Winters, of Omaha, for appellants.

Reed, Ramacciotti, Robinson & Hruska, and Henry R. Marshall, all of Omaha, for appellees.

Heard before SIMMONS, C. J., EBERLY, PAINE, MESSMORE, and JOHNSEN, JJ., and KROGER and ELLIS, District Judges.

MESSMORE, Justice.

This is an appeal from a judgment of the district court for Douglas county, rendered in a garnishment proceeding in aid of execution. The case was tried, submitted and decided by the district court on a stipulated statement of facts, in substance as follows:

The Live Stock National Bank recovered a money judgment against the defendant, Truman A. Jackson, which was assigned to Frank Sargent, one of the appellees. Execution was duly issued on the judgment and returned unsatisfied for want of property to levy upon belonging to the defendant Jackson. Subsequent to the return of the execution, garnishee process was issued to the Inter-State Live Stock Commission Company, a copartnership, as garnishee, to appear and answer as to any indebtedness it might owe the defendant Jackson. Said garnishee process was issued upon an application of the plaintiff as required by law. May 8, 1939, the garnishee, Inter-State Live Stock Commission Company, appeared in open court and admitted that it was the employer of the defendant and indebted to him in the sum of $250, for the period covered by the garnishee process, as wages earned by him. Defendant Jackson appeared in said proceedings, filed an affidavit, received in evidence, in which he stated that he was a married man, the head of a family, having a wife and daughter living with and dependent upon him for support; that the wages sought to be garnished in this proceeding were wages earned after the first day of April, 1939, and that he had no other source of income except said wages; that said wages are necessary for the support of himself and family and are exempt, as provided in section 20-1574, Comp.St.1929.

The district court entered an order as of date June 19, 1939, finding that the defendant is indebted to the plaintiff on the judgment entered herein; that execution against the defendant had been returned unsatisfied for want of sufficient property on which to levy; that the garnishee, Inter-State Live Stock Commission Company, at the time of its answer, was indebted to defendant Jackson in the sum of $250. The court found as a matter of law that 90 per cent. of said $250 is exempt to the defendant, but that 10 per cent. of said sum is not so exempt and is subject to attachment and garnishment by the plaintiff. From this order defendant Jackson and Inter-State Live Stock Commission Company, garnishee, appeal.

The sole question tried in the lower court was as to whether 90 per cent. of the wages of defendant Jackson was exempt to him under the provisions of section 20-1559, Comp.St.1929, or whether the whole amount of the wages was exempt to him under the provisions of section 20-1574, Comp.St.1929.

Appellants' contention is that the act of 1907 (Laws 1907, ch. 160), which is the same as section 20-1559, Comp.St.1929, is unconstitutional and void for the reason that it is amendatory of section 20-1574, Comp.St.1929, without so stating in the section and without repealing section 20-1574; hence, there was a violation of section 14, art. III of the Nebraska Constitution, which provides: " No law shall be amended unless the new act contain the section or sections as amended and the section or sections so amended shall be repealed."

Section 20-1574, Comp.St.1929, is found under article 15, " Executions And Exemptions," " (c) Proceedings In Aid Of Execution," and reads: " The judge may order any property of the judgment debtor, not exempt by law, in the hands of either himself or any other person or corporation, or due to the judgment debtor, to be applied towards the satisfaction of the judgment; but the earnings of the debtor for his personal services, at any time within three months next preceding the order, cannot be so applied, where it is made to appear, by the debtor's affidavit or otherwise, that such earnings are necessary for the use of a family supported wholly or partly by his labor." The foregoing sec tion of the statute has been in existence, without change, since 1858, and was a part of the Civil Code enacted in 1858. Complete Session Laws 1858, Part II, pp. 487, 520.

Section 20-1559, Comp.St.1929, is found under the same chapter as said section 20-1574, with the exception that the former section is under " (b) Exemptions." Section 20-1559 was first enacted February 15, 1869, Laws 1869, p. 170, and provided " That the wages of laborers, mechanics and clerks, in the hands of those by whom such laborers may be employed, both before and after such wages shall be due, shall be exempt from the operation of attachment, execution or garnishee process; Provided, That not more than sixty days wages shall be exempt." This act was amended February 25, 1873, to read as follows: " The wages of laborers, mechanics, and clerks who are heads of families in the hands of those by whom such laborers, mechanics, or clerks may be employed, both before and after such wages shall be due, shall be exempt from the operation of attachment, execution, and garnishee process; Provided, That not more than sixty days' wages shall be exempt." Complete Session Laws 1873, p. 729. (Italics ours.)

The similarity between sections 20-1574 and 20-1559, Comp.St.1929, is apparent, in that section 20-1574 contains the provision " but the earnings of the debtor for his personal services, at any time within three months next preceding the order, cannot be so applied," meaning to the indebtedness; while section 20-1559, before being amended, contained the provision: " Not more than sixty days wages shall be exempt." In 1907 said section 20-1559 was amended (Laws 1907, ch. 160), and now provides as follows: " The wages of all persons who are heads of families, in the hands of those by whom such persons may be employed, both before and after such wages shall be due, shall be exempt from the operation of attachment, execution and garnishee process to the extent of ninety per cent of the amount of such wages."

Section 20-1574, Comp.St.1929, was a part of the Code of Civil Procedure enacted in 1858. The title to the act was: " An Act to establish a Code of Civil Procedure," and under " Proceedings in Aid of Execution" provided as set out in section 20-1574. The Code did not state in precise terms the subject of exemption of wages; nor did any other enactment of the Code so state until 1869, when section 20-1559 was originally enacted, the title to the act reading: " To Exempt Laborers Mechanics and Clerks wages in the hands of Employers, from Execution, Attachment and Garnishee Process." We deem it unnecessary to further follow this legislative history....