Pomeroy v. Beach

• Decision Date: 17 February 1898
• Docket Number: 18,326
• Citation: 49 N.E. 370,149 Ind. 511
• Parties: Pomeroy et al. v. Beach et al
• Court: Indiana Supreme Court

49 N.E. 370

149 Ind. 511

Pomeroy et al. v. Beach et al

No. 18,326

Supreme Court of Indiana

February 17, 1898

From the Porter Superior Court.

Reversed.

A. D Bartholomew and William Johnston, for appellants.

John E Cass, for appellees.

Monks J., Hackney, J.

OPINION

Monks, J.

This action was brought against appellants by the appellees, and an affidavit in garnishment was filed under the provisions of the act of 1897 (Acts 1897, p. 233). There was a special finding of the facts and the conclusions of law stated thereon, in which the court held, in substance, that under the provisions of said act of 1897 only $ 25.00 of the wages of appellant Pomeroy, a resident householder, was exempt from seizure for the payment of said indebtedness, and rendered judgment accordingly.

Appellants contend, among other things, that said act of 1897 is in conflict with the provisions of our constitution, and is, therefore, void. This act was passed to amend sections 208, 216, 221, 224, and 243 of the act concerning proceedings in civil causes, approved April 7, 1881, being sections 943, 948, 951, 954, 971, Burns' R. S. 1894 (931, 936, 939, 942, 959, R. S. 1881). The sections amended are concerning proceedings in garnishment.

Before said amendment of 1897, it was provided that the process against a garnishee could only issue upon filing the proper affidavit at the time, or before or after the order of attachment issued. Section 943, Burns' R. S. 1894 (931, R. S. 1881). But no process could issue against a garnishee unless an affidavit in attachment had been filed, or the affidavit in garnishment contained also all the essential requirements of an affidavit in attachment.

The sections of the Code of Civil Procedure of 1881 concerning proceedings in attachment and garnishment are in one act, and are to be construed together. They provided for both remedies, but no judgment could be recovered against the garnishee unless a writ of attachment had been issued, and a judgment was recovered against the defendant in the attachment proceedings. Emery v. Royal, 117 Ind. 299, 303-304, 20 N.E. 150; 2 Shinn on Attachment and Garnishment, section 694.

It is provided in section 216 of the Code of Civil Procedure, as amended by the act of 1897, Acts 1897, p. 233, being section 943, Burns' Supplement, 1897 (931, Horner's R. S. 1897), that "in all personal actions arising upon contract, express or implied, or upon a judgment or decree of court, if at the time such action is commenced or at any time afterwards, whether a writ of attachment has been issued or not," the plaintiff file the proper affidavit and undertaking, a garnishee summons shall be issued. It will be observed that the section as amended, like the original section, provides that the garnishee process may issue, whether a writ of attachment has been issued or not, but the affidavit in attachment is not waived or dispensed with.

The sections, as amended by said act of 1897, are to be read into the Code of Civil Procedure in the place of the original sections, and from the date said act took effect are a part of said Code of Civil Procedure, and must be so construed. An amendatory act and the amended statute are to be construed as one. Walsh, Treas., v. State, ex rel., 142 Ind. 357, 362, 41 N.E. 65, and cases cited; Sutherland on Stat. Const., section 288.

It is clear, therefore, that the act of 1897 does not provide an independent procedure in garnishment, but that the amended sections are to be construed with the sections of the Code of Civil Procedure of 1881 concerning proceedings in attachment and garnishment not amended by said act. When so construed, it is evident that it was not the legislative intent that any one should be authorized to commence proceedings in garnishment, and obtain a summons, without also filing an affidavit in attachment, either at the time, or before he filed his affidavit in garnishment. Now, as before the act of 1897 was passed, an affidavit in attachment must be filed, as well as an affidavit in garnishment, before the garnishee summons can issue.

It is true that section 943 (931), supra, as amended, provides for a garnishee undertaking, but, as the amendment of 1897 makes provision for garnishee summons without a writ of attachment being issued, and that a judgment may be recovered against the garnishee where no writ of attachment has been issued, it must be held that such undertaking is only necessary when no bond in attachment has been filed, and when such attachment bond has been filed no undertaking in garnishment need be filed. It certainly was not the purpose of the legislature to require an affidavit, as provided by section 928, Burns' R. S. 1894 (916, Horner's R. S. 1897), in which among other things some one or more of the grounds of attachment provided in section 925, Burns' R. S. 1894 (913, Horner's R. S. 1897) must be set forth, before an order for attachment could be issued, and proof of such facts before a plaintiff would be entitled to a judgment in attachment, but to authorize a garnishee summons and a judgment against a garnishee without any affidavit or proof of such facts merely upon affidavit containing the facts required by section 943 (931), supra, and the proof thereof at the trial.

The facts stated in the special finding do not show the existence of any one or more of the grounds of attachment set forth in section 925 (913), supra. Unless such facts were shown by the special finding, appellees were not entitled to judgment against the garnishee.

Under the provisions of section 715, 730, Burns' R. S. 1894 (703, 718, Horner's R. S. 1897), a resident householder was entitled to an exemption of $ 600.00 in any kind of property he might designate, and could take the whole amount, or any part thereof, in wages due him, if he should so elect. Unless the said act of 1897 changed said law in regard to the debtor's right to an exemption, the trial court erred in its conclusions of law.

Section twenty-two of article one of the constitution imposes upon the legislature the duty to pass laws exempting a reasonable amount of property from seizure or sale for the payment of any debt or liability. The exemption laws of the State in force when the act of 1897 was passed were enacted in compliance with this provision of the constitution.

It has been uniformly held in this State that the constitutional provision relating to exemptions, and the statutes passed pursuant to the requirements thereof, were 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 construed. Kelley v. McFadden, 80 Ind. 536, 538; Astley v. Capron, 89 Ind. 167, 170; Butner v. Bowser, 104 Ind. 255, 3 N.E. 889; Junker v. Hustes, 113 Ind. 524, 16 N.E. 197; Chatten v. Snider, 126 Ind. 387, 389, 390, 26 N.E. 166, and cases cited; Citizens State Bank, etc., v. Harris, ante, 208; 7 Am. and Eng. Ency. of Law, 130 and...