Stockard v. Hamilton.

• Court: New Mexico Supreme Court
• Writing for the Court: RAYNOLDS, J.
• Citation: Stockard v. Hamilton, 25 N.M. 240, 180 P. 294, 1919 NMSC 18 (N.M. 1919)
• Decision Date: 10 April 1919
• Docket Number: No. 2213.,2213.
• Parties: STOCKARDv.HAMILTON.

25 N.M. 240

180 P. 294

STOCKARD

v.HAMILTON.

No. 2213.

Supreme Court of New Mexico.

April 10, 1919.

Syllabus by the Court.

Under the statute law of this state (Laws 1917, c. 18), the salary of a district attorney may be garnished in the hands of the disbursing officer of the state.

A case in which final judgment has been entered is not a “pending case,” within the constitutional provision (article 4, § 34), which states that “no act of the Legislature shall affect the right or remedy of either party, or change the rules of evidence or procedure, in any pending case” (citing Words and Phrases, First and Second Series, Pending).

Appeal from District Court, Chaves County; Richardson, Judge.

Action by J. W. Stockard against H. B. Hamilton, with garnishment against the Auditor and the Treasurer of the State of New Mexico. Demurrer to complaint overruled, and judgment entered against defendant and the garnishees, and defendant appeals. Affirmed.

This action arose out of the following facts: On July 17, 1914, appellee, Stockard, plaintiff below, obtained judgment by default against the appellant, Hamilton, upon a promissory note dated June 10, 1912, and due one year from date. On July 31, 1915, appellee filed a complaint based on said judgment, and at the same time summoned as garnishee the then auditor and treasurer of the state of New Mexico, attempting thereby to garnishee the salary due from said state to the appellant, who was at all times during these proceedings the qualified and acting district attorney for the Third judicial district of this state. A demurrer was filed to the complaint by appellant, and sustained by the district court, and judgment subsequently entered for the appellant therein. Later, to wit, on the 13th day of August, 1917, the appellee again instituted suit by garnishment proceedings, and again summoned as garnishees the treasurer and auditor of the state of New Mexico. A demurrer was filed to the complaint in this action, which was overruled by the trial court, and judgment entered against the appellant and against the garnishees, the state treasurer and auditor, for the amount admitted by them to be due appellant in their return to the garnishment proceeding. It is from the sustaining of the demurrer and the entering of this judgment against the appellant and the garnishees that this appeal is taken.

A case in which final judgment has been entered is not a “pending case” within Const. art. 4, § 34, providing that “no act of the Legislature shall affect the right or remedy of either party, or change the rules of evidence or procedure, in any pending case”; “pending” meaning depending; remaining undecided; not terminated.

J. C. Gilbert, of Roswell, for appellant.

J. D. Mell, of Roswell, for appellee.

RAYNOLDS, J.

[1] The appellant assigns as error the action of the district court sustaining the demurrer on the ground that the act of 1917 (Laws 1917, c. 18) is unconstitutional and void; that the state officers cannot be summoned as garnishees, nor can the salary of a state officer be garnished.

The question of garnishment of the salary of a state officer has been before this court on previous occasions, and it has been held that, in the absence of a statute clearly authorizing such action, a public officer could not be summoned as garnishee, nor could the salary of a state officer be subject to garnishment. See First National Bank v. Scott, 22 N. M. 411, 163 Pac. 1084; Owen v. Terrell, 22 N. M. 373, 162 Pac. 171; S. W. Loan Co. v. Awalt, 22 N. M. 607, 166 Pac. 1181, L. R. A. 1917F, 1117.

A distinction is made in the last case cited, namely, S. W. Loan Co. v. Awalt, between a public officer whose term of office has expired and one whose term is still in existence at the time the garnishment is sued out; but that distinction has no bearing on this case. In the cases of Owen v. Terrell and First National Bank v. Scott, the reason for the rule that garnishment of public officers' salary is considered contrary to public policy is announced and explained, and the law of 1915 (Laws 1915, c. 26) passed upon. In the present case, as shown by the statement of facts hereinbefore made, the judgment was obtained and one garnishment issued before the law of 1917 (chapter 18) went into effect. The question involved in the present case concerns the construction of that act under authority of which it is conceded this proceeding to garnishee was brought.

The act, so far as is material to this case, is as follows:

“In all cases where the plaintiff has a judgment in some court of the state against any public official or any employé of the state of New Mexico, any county, city, town, village, municipality or school district thereof, the salaries of any such public officials and the salaries or wages of any such person so employed by said state of New Mexico, or any such county, city, village, town, municipality or school district thereof, shall be subject to garnishment: Provided, nothing in this act shall be construed to impair the rights of such public officials or such employé of said state, county, city, town, village, municipality or...