Lyons v. Austin
| Decision Date | 27 February 1934 |
| Docket Number | 28833 |
| Citation | 252 N.W. 908,126 Neb. 248 |
| Parties | GEORGE C. LYONS, APPELLEE, v. HARMON B. AUSTIN, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Dawes county: EARL L. MEYER JUDGE. Affirmed.
AFFIRMED.
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.
2. Ninety per cent. only of the wages due a judgment debtor is exempt from garnishment in aid of execution on a judgment rendered for other than necessaries.
3. A defense, not submitted to the trial court nor disclosed by the record, cannot be considered by this court on appeal.
Appeal from District Court, Dawes County; Meyer, Judge.
Action by George C. Lyons against Harmon Ben Austin, wherein Mildred Grace Austin intervened and wherein plaintiff filed affidavit for garnishment in aid of execution which was served on the Chicago & Northwestern Railway Company. From the judgment, the defendant and intervener appeal.
Affirmed.
Allen G. Fisher, Charles A. Fisher and J. E. Porter, for appellant.
E. D. Crites and F. A. Crites, contra.
Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY and PAINE, JJ.
This appeal arises out of an order in a garnishment proceeding in aid of execution. The order found that 10 per cent. of the amount of wages owing the debtor by the garnishee was not exempt and was applicable to the judgment of plaintiff. Austin, the judgment debtor, has appealed.
From the record it appears that some time previous to the present proceeding plaintiff had obtained a judgment against the defendant; that execution had been issued thereon and returned unsatisfied; that he then filed an affidavit for garnishment in aid of execution which was served upon the Chicago & Northwestern Railway Company. That company answered that it had in its possession certain sums as wages due the defendant for services as an engineer. The defendant filed an inventory of his personal property, showing that the total amount of his personal property, other than the wages due him, did not exceed $ 25, and alleged that he owned neither land, town lots, nor houses subject to exemption as a homestead, and claimed the total amount of his wages as exempt from attachment or garnishment. It was stipulated that the judgment in favor of plaintiff was not rendered for necessaries furnished the defendant or his family.
The trial court found that the debtor was the head of a family, but, nevertheless, that his wages, to the extent of 10 per cent., were subject to garnishment and should be applied towards the payment of plaintiff's judgment, but that 90 per cent. of the wages were exempt and should be applied according to the direction of the defendant debtor. The only question is whether the 10 per cent. of the wages was exempt from attachment or garnishment.
Plaintiff cites and relies upon Jones v. Union P. R. Co., 84 Neb. 121, 120 N.W. 946, and Woolfson v. Mead, 96 Neb. 528, 148 N.W. 153. Those cases were decided on the statute as it then existed. Section 521 of the Code then provided: "All heads of families who have neither lands town lots, or houses subject to exemption as a homestead, under the laws of this state, shall have exempt from forced sale on execution...
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