M.R.R.Co. in Nebraska v. Thompson

• Decision Date: 03 January 1884
• Citation: 1 P. 622,31 Kan. 180
• Court: Kansas Supreme Court
• Parties: THE BURLINGTON & MISSOURI RIVER RAILROAD COMPANY IN NEBRASKA v. T. W. THOMPSON

1 P. 622

31 Kan. 180

THE BURLINGTON & MISSOURI RIVER RAILROAD COMPANY IN NEBRASKA v. T. W. THOMPSON

Supreme Court of Kansas

January 3, 1884

Error from Atchison District Court.

ACTION of debt brought by T. W. Thompson against G. L. Jackson. The Burlington & Missouri River Railroad Company in Nebraska was duly garnished in the action. Trial by the court at the June Term, 1883, when the court made findings of fact as follows, to wit:

"1. On November 9, 1881, the plaintiff commenced an action before a justice of the peace of this county against G. L. Jackson for the recovery of an indebtedness of 15 50/100 dollars, and at the same time plaintiff commenced in due form of law proceedings in garnishment against the said railroad company which is a railroad company organized and existing under the laws of Nebraska, and having its general or principal office at Omaha, Nebraska, and operating lines of railroad principally in that state; but it also operates under a lease the Atchison & Nebraska railroad, extending from Atchison, in Atchison county, Kansas, to Lincoln, Nebraska, a total distance of one hundred and forty-seven miles, of which about thirty-seven miles are in Kansas; and has local agents to transact its business along said line, including one at Atchison, in this county, who is known as the station agent having charge of the depot, and also of the local passenger and freight business, and the notice of garnishment was served on said agent on said day. No personal service of summons was ever made upon said G. L. Jackson, and he never appeared in the action, but service was made by publication the case as to the garnishee being continued from time to time by agreement between the plaintiff and the garnishee.

"2. Said railroad company made partial answer as garnishee on November 18, 1881, and also on November 27, 1881, and full answer on February 25, 1882. In said full answer the garnishee admitted that on November 19, 1881, said company was indebted to said G. L. Jackson in the sum of twenty-six dollars and twenty-five cents, but that on November 21, 1881, he quit the service of the company and was discharged and paid off; that said money was due said G. L. Jackson for earnings for personal services rendered within the last two months next preceding said time, and necessary for the support of the family of said G. L. Jackson, and of which he was the head, and that said money was exempt from attachment or garnishment.

"3. On May 10, 1882, judgment was rendered by said justice of the peace in favor of the plaintiff against said G. L. Jackson for $ 15 50/100 debt, and $ 12 90/100 costs in said action. On May 22, 1882, an order was made by said justice of the peace, requiring said railroad company to pay into court on said judgment said sum of $ 26 25/100. Said railroad company has never paid said sum nor any part thereof, upon said judgment, which remains unsatisfied; neither said G. L. Jackson nor said railroad company ever having paid any part thereof.

"4. During the month of November, until the 19th day thereof, said G. L. Jackson was a brakeman in the employ of said railroad company on its said leased line between Atchison and Lincoln, assisting in operating trains between said points, and up to said time his wages were $ 26 25/100; but up to November 9, 1881, when said railroad company was served with notice of garnishment, the amount due him was only $ 15 50/100. Said G. L. Jackson was the head of a family consisting only of his wife and himself, and they lived and resided at Lincoln, Nebraska; and said money was due solely for personal services of said G. L. Jackson, as wages as a brakeman for said railroad company during November, 1881. The general business of said company was transacted at Omaha; but employes working upon trains and at stations were usually paid from a pay car run over the lines of railroad, by checks upon the treasurer at Omaha; and the indebtedness to said G. L. Jackson was so paid by checks upon the treasurer at Omaha.

"5. Ever since February 25, 1873, an act of the legislature of Nebraska has been in force, as follows:

'SECTION 1. The wages of laborers, mechanics, and clerks, who are the 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: Provided further, That nothing in this act shall be so construed as to protect the wages of persons who have or are about to abscond or leave the state, from the provisions of law now in force upon that subject: Provided further, That nothing in this act shall be so construed as to permit the attachment of sixty days' wages in the hands of the employers.'

"6. Whether said wages were necessary or not for the maintenance of the family of said G. L. Jackson, does not appear; and it does not appear whether the said G. L. Jackson ever had any actual notice of said action, or of said garnishment proceedings, or not."

On the foregoing findings the court made the following conclusion of law, to wit:

"The plaintiff is entitled to recover of the defendant the sum of 13 50/100 dollars, the amount of the defendant's indebtedness to G. L. Jackson at the time the garnishment proceedings were instituted and the notice served, and no more; and also the costs of suit."

To each and all of the conclusions of fact so found and stated, the defendant duly excepted; and to the conclusion of law refusing plaintiff judgment for the sum of $ 26 25/100, the plaintiff duly excepted. Thereupon the defendant asked the court to specially find and state its conclusion of fact as to the place where the said G. L. Jackson was employed for such service, and the kind of service so employed for, and the court declined to change its findings in any respect as so filed; to which action of the court, the defendant at the time duly excepted. A new trial was denied, the defendant excepting. Thereupon the court upon the findings aforesaid adjudged that plaintiff recover of defendant the sum of $ 13 50/100, together with costs of suit, and that plaintiff have execution therefor. The defendant railroad company excepted to this judgment, and brings the case here.

Judgment affirmed.

W. W. Guthrie, for plaintiff in error:

Three questions, but in reality involving but one proposition, are presented by the record: First, can a foreign corporation be garnished as the debtor of a non-resident, for a debt contracted and payable in a foreign state, by service on a servant, or even the officers of the corporation? Second, can a non-resident claim exemption of his wages in this state, when residing in another state and earning his wages there, which has a labor exemption like that of Kansas, except that if he is the head of a family his wages are exempt under all circumstances? Third, can the garnishee interpose as a defense in an action against it, after having paid its creditor, as the laborer might have done; or in other words, can the corporation decline to pay its laborer in such case, after garnishment?

1. This case on the record is fully within question one as stated, and must be decided in the negative under the authority of reason, and the principle of the following cases: Tingley v. Baterman, 10 Mass. 343; Sanks v. Rld. Co. 45 Wis. 172, 180; Sawyer v. Thompson, 4 Foster (N. H.) 510. It cannot be said that the laborer may demand his wages and the debtor be unable to refuse, and then in a foreign jurisdiction where the laborer has no interest to go, that a creditor of such laborer can successfully demand a second payment unless such laborer shall there claim his exemption. In this case, the right of the laborer to demand his wages in Nebraska must protect the employer from garnishment without that state; in other words, the right exists by virtue of the laws of Nebraska, and unless the owner thereof submits to another jurisdiction he cannot be affected; and if he cannot be affected, neither can his debtor. (Pierce v. Rld. Co., 36 Wis. 283; Rld. Co. v. Ragland, 84 Ill. 376; Winterfield v. Rld. Co., 16 id. 435; Lock v. Johnson, 36 Me. 464.)

2. Our statute authorizing garnishee proceedings and service on depot agents (as was done in this case) does not give such right outside of Kansas jurisdiction; and so held in a case in point, Sawyer v. Thompson, supra, quoted in 45 Wis. 178.

3. The Nebraska statute exempted Jackson's wages if he was the head of a family, without regard to whether or not his wages were necessary to the support of his family. We insist that such exemption can be insisted on in Kansas in a proceeding in rem by the employer, as it may be by him, or in his favor in Nebraska, as of right, and as held in Sawyer v. Thompson; but if not of right, then of comity. Shall it be said that the employer of a laborer at $ 45 per month, who is the head of a family, can be followed into Kansas, and his wages, exempt where both he and his employer live, and such wages are earned and payable, be there taken, not as of right, but of comity to a sister state? The reasons for protecting wages are much stronger than in favor of a homestead, and in such case this court has said, (Monroe v. May, 9 Kan. 475): "We may not defeat its beneficent purpose by strict, technical, arbitrary constructions." (See also Morris v. Ward, 5 Kan. 247.) Shall it be said that Jackson's wages were exempt to him so long as he and his employer remained in Nebraska; but let the employer cross the line into Kansas, and in an instant his exemption is gone, or the employer is compelled to pay him in Nebraska, and his creditor in Kansas, unless he appear and show that such wages...