McFadden v. Murray

• Decision Date: 21 May 1927
• Docket Number: No. 3096.,3096.
• Citation: 257 P. 999,32 N.M. 361
• Parties: McFADDENv.MURRAY.
• Court: New Mexico Supreme Court

32 N.M. 361

257 P. 999

McFADDEN

v.MURRAY.

No. 3096.

Supreme Court of New Mexico.

May 21, 1927.

Syllabus by the Court.

Exemption statutes should be liberally construed.

The exemption in lieu of homestead (Code 1915, § 2327) may be claimed out of current wages garnished.

Additional Syllabus by Editorial Staff.

Personal property in its broad and general sense includes everything which is subject of ownership not coming under denomination of real estate, and term “real or personal property” is in common used to denote property of all kinds.

A chose in action is personal property.

Appeal from District Court, Rio Arriba County; Holloman, Judge.

Action by Mrs. E. F. McFadden against C. P. Murray. From a judgment for plaintiff against defendant and a garnishee, defendant appeals. Reversed and remanded, with direction.

Parker, C. J., dissenting.

“Chose in action” is “personal property.”

E. P. Davies and W. N. Birdsall, both of Santa Fé, for appellant.

A. M. Edwards, of Santa Fé, for appellee.

WATSON, J.

[2] In an action against appellant, wages due him were garnished. The garnishee's return showed an indebtedness of $130. Being a resident of New Mexico, the head of a family, and not the owner of a homestead, appellant laid claim to the whole of said indebtedness as exempt under Code 1915, § 2327. The contention was overruled, and judgment was given against appellant and the garnishee for $32.50.

Section 2327, supra, on which appellant relies, is as follows:

“Any resident of this state who is the head of a family, and not the owner of a homestead, may hold exempt from levy and sale, real or personal property to be selected by such person, his agent or attorney, at any time before sale, not exceeding five hundred dollars in value, in addition to the amount of chattel property otherwise by law exempted.”

Appellee relies on Laws of 1919, c. 153, § 1, reading as follows:

“No person shall be charged as garnishee, in any court in this state, on account of current wages, or salary due, from him to a defendant, in his employ, for more than twenty per cent of any wages or salary due such defendant for the last thirty days' service, unless the wages or salary due said defendant exceeds seventy-five dollars per month, garnishment may be had for twenty per cent of seventy-five dollars of such wages and salary, and, in addition thereto, for full amount of the excess of such wages or salary above seventy-five dollars. No exemption whatever shall be claimed, under the provisions of this section, where the debt was incurred for necessities of life, or for any debt, in either of the following cases: In case the debtor is not the head of a family, or in case the debtor is the head of a family, where the family does not reside in this state.”

Appellee admits that this appeal involves but the single question-whether the $500 exemption in lieu of homestead may be claimed out of current wages which have been garnished. She contends that the only exemption which may be so claimed is that prescribed by Laws of 1919, c. 153, § 1, supra.

Contending that the $500 exemption in lieu of homestead may be allowed from current wages, appellant invokes two well-established rules of statutory construction, namely: (1) That exemption statutes are to be construed liberally in aid of their beneficent purpose; and (2) that repeals by implication are not favored. His argument is that, liberally construed, Code, § 2327, supra, applies to attempts to reach current wages by garnishment process, and that it was not impaired by the subsequent adoption of the 1919 provision, supra.

Appellee cites only Gregory v. Evans, 19 Mo. 261; In re French (D. C.) 250 F. 644. The former is not persuasive; the latter is not in point. Appellant cites 25 C. J. “Exemptions,” § 224; Wilson v. Bartholomew, 45 Mich. 41, 7 N. W. 227; Seymour, Sabin & Co. v. Cooper, 26 Kan. 539; Fanning v. Bank, 76 Ill. 53; Goodwin v. Claytor, 137 N. C. 224, 49 S. E. 173, 67 L. R. A. 209, 107 Am. St. Rep. 479; Enzor & McNeill v. Hurt, 76 Ala. 595; Pomeroy v. Beach, 149 Ind. 511, 49 N. E. 370. These cases are undoubtedly distinguishable as appellee claims. Still we think they tend generally to support appellant's contentions. We need not discuss them, as the question must be decided upon consideration of the course of garnishment and exemption legislation in New Mexico.

Prior to 1887, garnishment was not an independent proceeding, though the same substantial result was attainable as now-that of subjecting to the payment of a debt property of the debtor in the hands of a third person, including wages owing. After judgment, it was accomplished by what is known as garnishment on execution. Code 1915, § 2192. If it was desired to obtain a lien before judgment, there was statutory provision for garnishment in attachment suits. C. L. 1897, § 2698 et seq.

In 1887 a comprehensive exemption act was passed. Laws 1886-87, c. 37. It now appears, without much change, as sections 2311-2329, Code of 1915. Section 19 of that act is the present Code, § 2327, supra. Section 1, subsec. 6 (Code 1915, § 2311) originally read:

“The personal earnings of the debtor, and the personal earnings of his or her minor child or children, for three months, when it is made to appear, by the affidavit of the debtor, or otherwise, that such earnings are necessary to the support of such debtor, or of his or her family, and such period of three months shall date from the time of issuing any attachment or other process, the rendition of any judgment, or the making of any order, under which the attempt may be made to subject such earnings to the payment of a debt.”

In 1909 a garnishment act was passed, compiled in Code 1915 as sections 2521-2552. By it the garnishment provisions of the attachment law were expressly repealed. The provision for garnishment on execution was not. Laws 1919, c. 153, § 1, supra, which appellee contends provides an exclusive exemption from current wages, has, by legislative processes succeeded to section 26 of the 1909 act (Code 1915, § 2546).

Garnishment is not a device by which exempt property may be reached. The second ground for the issuance of the writ is “that the defendant has not within his [affiant's] knowledge property in his possession within this state subject to execution sufficient to satisfy such debt.” Code 1915, § 2521. It is only effects subject to execution which the garnishee will be required to deliver to the sheriff. Code 1915, § 2539.

We find, then, in the present garnishment law, no such change from the former system, or from former principles, as would sustain the view that the Legislature intended to change the former relation between the garnishment law and the exemption law. So we think that if the act of 1887, when adopted, applied to garnishments, it still so applies.

While the language used in the various sections of the 1887 act is somewhat varied, most of the sections mention attachment, as well as execution, as process from which property is to be exempt. As we have seen, attachment at that time included garnishment. It can hardly be doubted that in general the exemptions established by the act were intended to be allowed when the property was sought to be reached by garnishment.

It was section 1, subsec. 6, supra, of the 1887 act, which particularly applied to current wages. It is plain from that section, in its original form, that “personal earnings” were to be exempt from “attachment or other process, the rendition of any judgment, or the making of any order, under which the attempt may be made to subject such earnings to the payment of the debt.” The language just quoted no longer appears in the section, it having been amended to its present form by Laws 1897, c. 71. There is nothing in the change to indicate a change of policy as to the applicability of that particular exemption to garnishment proceedings. Indeed, we do not understand how that exemption could have been otherwise intended. Personal earnings, as a debt, could then, as now, be reached only by garnishment. So in 1887 there was a specific exemption, as there is now, when current wages were garnished. We think that when proceeding under the garnishment statute it must be considered that subsection 6, § 1 of the 1887 Code was superseded by section 26 of the 1909 act, the present form of which is Laws 1919, c. 153, § 1, supra. We do not see how the two sections could operate together. The present specific exemption being merely the successor of the original 1887 provision, and there being nothing to indicate the contrary, it seems plain that if the additional exemption in lieu of homestead could, in 1887, have been claimed out of current wages, it may still be so claimed. That reduces the question to this: Was the exemption from personal earnings in the 1887 act an exemption of chattel property to which the exemption in lieu of homestead was to be additional?

Appellee urges that section 19 of the 1887 act, providing for exemption only from “levy and sale,” was intended to apply only to execution process. The term “levy” is equally appropriate in speaking of an attachment. At that time the levy of attachments and of executions involved, in appropriate cases, notice to garnishees. So, to exempt from “levy” was to exempt from garnishment.

[3][4] Section 19 of the 1887 act permits exemption to be selected from “real or personal property,” and “in addition to the amount of chattel property otherwise by law exempted.” Personal property “in its broad and general sense * * * includes everything which is the subject of ownership not coming under the denomination of real estate.” 32 Cyc. 667. The term “real or personal property” is in common use to denote property of all kinds. A chose in action...