Martin v. Loula, 26386.

CourtSupreme Court of Indiana
Citation194 N.E. 178,208 Ind. 346
Docket NumberNo. 26386.,26386.
PartiesMARTIN v. LOULA et al.
Decision Date23 February 1935

208 Ind. 346
194 N.E. 178

LOULA et al.

No. 26386.

Supreme Court of Indiana.

Feb. 23, 1935.

Suit by Lyle Martin against Rudolph Loula and another. From an adverse decision, plaintiff appeals.

Reversed, and trial court instructed to overrule the demurrer to the complaint.

[208 Ind. 347]

[194 N.E. 179]

Appeal from Superior Court, Lake County; Charles E. greenwald, judge.
Harry P. Sharavsky, Edgar J. Call, and Kenneth Call, all of Gary, for appellant.

George Panea, of Hammond, for appellee.


This is an appeal by the appellant, a judgment debtor and resident householder of Indiana, from an adverse decision of the Lake superior court, room 3, wherein appellant sought to enjoin appellees, justice of the peace and constable, from issuing and levying an execution upon 10 per cent. of the wages due appellant from his employer, pursuant to chapter 61, Acts 1925, commonly known as the ‘1925 Garnishee Law.’

Under the issues, the validity of said acts is presented for determination.

The title of chapter 61 of the Acts of 1925 is: ‘An Act concerning executions and exemptions.’ Section 1 of the act, in substance, provides that when a judgment [208 Ind. 348]has been recovered in any court of the state of Indiana, and where the debts, earnings, salaries, wages, income from trust funds or profits are due and owing to the judgment debtor or which thereafter become due and owing to him from any individual, firm, etc., and where an execution had been previously issued on the judgment and returned unsatisfied, ‘the judgment creditor may file in the court in which said judgment was recovered, his affidavit stating such facts,’ and naming therein the individual, etc., indebted to the judgment debtor. If the court is satisfied with the facts stated in the affidavit, upon a hearing, either in term or in vacation, it shall be the duty of the court to make an order directing an execution against the debts, etc., described in the affidavit, and stating therein the name of the individual, etc., liable for the payment thereof to the judgment debtor, ‘notwithstanding any exemption law now in force.’ Provision is made for the service of the execution by either a constable or a sheriff, depending upon the court issuing it, and further provision is made for the enforcement of the execution against the garnishee residing in another jurisdiction.

Section 2 of the act provides that the garnishee execution shall be a lien and a continuing levy upon the debts, etc., due an to become due to said judgment debtor ‘to the amount of not exceeding ten per cent. thereof, notwithstanding any exemption law now in force, and said levies shall be a continuing levy until said execution and costs are fully satisfied and paid by the application thereto of said percentage of such debts. * * *’

Section 3 makes it the duty of any individual or firm named in the execution, indebted to the judgment debtor, to pay over to the officer serving the same, not to exceed 10 per cent. of such debts, etc., until the execution is [208 Ind. 349]wholly satisfied. It is further provided that, if such garnishee shall fail or refuse to pay to such officer such percentage, he shall

[194 N.E. 180]

be liable to an action therefor by the judgment creditor.

Section 4 of the act provides that either party may apply to the court, upon notice to the other party, for a modification of such execution. The same section provides that it shall be a matter of defense to any application for the issuance of an execution: (1) That there is already another execution outstanding and unsatisfied; and (2) ‘no execution as provided for in this act shall issue on judgments on contracts made prior to sixty days after this act takes effect.’

Section 5 provides for the issuance of execution against another individual, firm, or corporation not named in the original execution, and that such execution ‘shall be a lien on ten per cent of any such debts, * * *’ owing to the judgment debtor.

Section 6 provides that the act shall not apply (1) to any account or judgment which has been assigned or transferred, nor (2) to claims or demands which by law are specifically exempted; and section 7 provides that the act shall not apply to contracts of sale unless the title has passed to the purchaser.

Section 9 repeals all laws in conflict with the provisions of the act ‘to the extent of such conflict.’

The assignment of error and the briefs in this and kindred appeals, now under consideration, assail the validity of the act upon several grounds, chiefly among which is that it violates sections 22 and 23 of article 1 of the Bill of Rights of the Constitution of Indiana, and the ‘due process' and ‘equal protection’ clauses of the Fourteenth Amendment of the Federal Constitution; and by reason thereof is unconstitutional and void.

[208 Ind. 350]Section 22, art. 1, of the Bill of Rights of our State Constitution, is as follows: ‘The privilege of the debtor to enjoy the necessary comforts of life shall be recognized by wholesome laws exempting a reasonable amount of property from seizure or sale for the payment of any debt or liability hereafter contracted.’ Pursuant to this constitutional injunction the Legislature, in 1852, enacted an exemption law allowing a resident householder an exemption of $300. This act remained in force until 1879 when the Legislature made the exemption $600, and in 1933 the exemption was fixed at $1,000, not more than $700 to be allowed in real estate or more than $600 in personal property. During that period other laws have been enacted affecting exemptions.

Does chapter 61 of the Acts of 1925 violate section 22, art. 1, of our State Constitution? Does it exempt a reasonable amount of property from seizure and sale in all cases? The court is not unmindful of the rules of construction applicable to legislative enactments, and the presumptions to be indulged in favor of the same. At the same time the rights of our citizens are to be zealously guarded and protected in their person and property as defined and prescribed, extended, or limited by the provisions of our Constitution. Pursuant to said section 22, this court has held uniformly that the constitutional provision relating to exemptions, and the statutes enacted by our Legislature pursuant thereto, are ‘based upon considerations of public policy and humanity; and it was not alone for the benefit of the debtor, but for his family also, that such laws were enacted, and the same should be liberally constued.’ See Pomeroy et al. v. Beach et al., 149 Ind. 511, 49 N. E. 370, 372;Union National Bank of Muncie v. Finley et al., 180 Ind. 470, page 480,[208 Ind. 351]103 N. E. 110;Markley v. Murphy, 180 Ind. 4, 102 N. E. 376,47 L. R. A. (N. S.) 689;Kelley v. McFadden, 80 Ind. 536;Astley v. Capron, 89 Ind. 167;Butner v. Bowser et al., 104 Ind. 255, 3 N. E. 889;Cowan Tent No. 61 et al. v. Treesh, 199 Ind. 24, page 29,155 N. E. 42;Chatten v. Snider, 126 Ind. 387, 26 N. E. 166;Cleveland, etc., R. Co. et al. v. Marshall, 182 Ind. 280, 105 N. E. 570, ann. Cas. 1917A, 756; International Text-Book Co. v. Weissinger et al., 160 Ind. 349, 65 N. E. 521,65 L. R. A. 599, 98 Am. St. Rep. 334.

It appears from the title of chapter 61 of the Acts of 1925 that it is intended to be an independent enactment of the Legislature, and does not purport to amend former enactments upon the question of executions and exemptions. It provides that all laws in conflict with any of the provisions of the act, are, to the extent of such conflict, repealed. As an independent act it gives a judgment creditor the right to levy upon 10 per cent. of all debts, earnings, salaries,...

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