Union Pac. Ry. Co. v. Smersh

• Decision Date: 05 January 1888
• Citation: 22 Neb. 751,36 N.W. 139
• Parties: UNION PACIFIC RY. CO. v. SMERSH.
• Court: Nebraska Supreme Court

22 Neb. 751

36 N.W. 139

UNION PACIFIC RY. CO.

v.SMERSH.

Supreme Court of Nebraska.

January 5, 1888.

Syllabus by the Court.

While an order made by a court in a proceeding in garnishment after judgment cannot be attacked collaterally, yet the garnishee afterwards may set up facts showing the amount owing by such garnishee to the debtor to be exempt from attachment or execution.

While the statute, in proceedings in garnishment after judgment, does not require notice to be given to the judgment debtor, yet the courts have power to require such notice to be given before the garnishee files his answer, in order that the debtor may protect his rights, and, if the money or property is exempt, have an opportunity to plead the exemption.

Money which is absolutely exempt, such as the wages of laborers who are heads of families, for 60 days, is not subject to fraudulent alienation, and the fact that such wages are exempt is a complete defense to any proceeding to apply them to the payment of a judgment against a debtor.

Error to district court, Douglas county; WAKELEY, Judge.

Action was brought by James Smersh, plaintiff, against L. H. Webster, defendant, in a justice's court, and a judgment obtained against defendant. A summons in garnishment was issued on said judgment, and the Union Pacific Railway Company garnished as a debtor of said Webster, and the justice refusing to discharge the garnishment, a transcript and petition in error was filed in the district court. On the hearing in the district court the petition in error from the justice was dismissed, and the order of the justice affirmed. The Union Pacific Railway Company brings error.

A. J. Poppleton and J. S. Shropshire, for plaintiff in error.

D. Van Etten, for defendant in error.

MAXWELL, C. J.

The defendant in error brought an action against one L. H. Webster, before a justice of the peace in Douglas county, and recovered a judgment for the sum of $45.83, and costs. Execution was duly issued on said judgment, and returned wholly unsatisfied. Afterwards an affidavit was filed before the justice, alleging that the Union Pacific Railway Company was indebted to Webster, and thereupon a summons in garnishment was issued and served on said company. The proceedings in garnishment are set forth in the transcript as follows:

“April 9, 1884, J. S. Shropshire, per garnishee, appeared and filed affidavit that garnishee was indebted to defendant in the sum of $53.90; whereupon the garnishee was ordered to pay the same into this court. June 3, 1884, amended answer of garnishee filed. June 3, 1884, affidavit of defendant filed. June 10, 1884, motion filed to discharge garnishee.

State of Nebraska, Douglas County: The Union Pacific Railway Company, garnishee, by J. S. Shropshire, who being duly authorized to answer herein, files this, its amended and supplemental answer in the above-entitled case, and says that the answer heretofore filed by the garnishee herein was, by oversight and mistake, incomplete in this, to-wit: That at the time said answer was filed, the said garnishee was not in fact indebted to said defendant, as affiant is informed and believed, for the reason that on the seventeenth day of March, 1884, the defendant sold and assigned to one Charles Brandes, of Omaha, the money sought to be garnished herein, and that said garnishee had notice of said assignment, but by accident and mistake this affiant was not notified of said fact in time to set the same up in the answer of the garnishee, filed as aforesaid. Affiant says that the said money answered as due said defendant was paid to the said assignee, who claimed and demanded the same. Affiant further says if said money had not been assigned as aforesaid, but, on the other hand, was due and payable to said defendant, it would have been exempt to said defendant under the laws of this state; that said defendant is a married man and the head of a family, consisting of a wife and children, whom he supports, and with whom he resides in Douglas county; and that the said money was earned by him as laborer's wages, all within 60 days immediately preceding the date of the answer aforesaid. Affiant says that said plaintiff and this court have had notice since the answer was filed herein that said money was exempt to said defendant, for the reason above set forth; but affiant believes that the said defendant up to this time has had no notice of the pending of said garnishment, and has had no opportunity to file his exemption. Wherefore garnishee asks to be discharged.

State of Nebraska, Douglas County: L. H. Webster, being duly sworn, deposes and says that he is the defendant above named; that he is a bona fide resident of Douglas county, Nebraska, and has been for 18 years last past; that he is a married man and the head of a family, with whom h...