Williams v. Sorenson

• Decision Date: 20 January 1938
• Docket Number: 7747.
• Parties: WILLIAMS v. SORENSON et al.
• Court: Montana Supreme Court

75 P.2d 784

106 Mont. 122

WILLIAMS v. SORENSON et al.

No. 7747.

Supreme Court of Montana

January 20, 1938

Appeal from District Court, Judith Basin County, 10th District Stewart McConochie, Judge.

Action for wrongful attachment, garnishment, and conversion by Otto W. Williams against Albert Sorenson and another. Judgment for defendants, and plaintiff appeals.

Reversed and remanded for a new trial.

H. O Vralsted, of Stanford, for appellant.

John B Muzzy, of Stanford, for respondents.

ANGSTMAN Justice.

Defendant Sorenson, as the holder of a judgment against plaintiff upon a claim other than for the necessities of life, caused execution to be issued on March 22, 1933, and delivered to defendant Black, the then sheriff of Judith Basin county. Plaintiff was then the assessor of that county. Black served notice of garnishment upon the county clerk and levied upon a warrant due to plaintiff from the county in the sum of $49.27. The warrant was issued by the county in payment of a claim owing to plaintiff for traveling expenses and board and lodging advanced by him in the performance of his duties as assessor.

Plaintiff filed a claim of exemption under section 9429, Revised Codes. Sorenson filed a bond to prevent the release of the warrant. The warrant was delivered by sheriff Black to Sorenson, who later cashed it.

This action was brought in the justice court for wrongful attachment, garnishment, and conversion, resulting in a judgment for plaintiff. On appeal by defendants to the district court, the judgment there went for defendants on motion for nonsuit at the close of plaintiff's evidence. This appeal followed.

The question before us is whether plaintiff made out a prima facie case of wrongful attachment or garnishment. Whether the attachment or garnishment was lawful depends upon whether the proceeds of the warrant were exempt under section 9429, and, if so, whether the exemption was properly claimed by plaintiff.

Section 9429 provides: "The earnings of the judgment debtor for his personal services rendered at any time within forty-five days next preceding the levy of execution or attachment, when it appears by the debtor's affidavit or otherwise that such earnings are necessary for the use of his family, supported in whole or in part by his labor, are exempt; but where debts are incurred by any such person or his wife or family for the common necessaries of life, then the one-half of such earnings above mentioned are nevertheless subject to execution, garnishment, and attachment, to satisfy debts so incurred. The words 'his family,' as used herein, are to be construed with the words 'head of family,' as used in section 6969."

Defendants contend that plaintiff's affidavit was not sufficient under the statute to properly claim the exemption. The affidavit of exemption was as follows:

"Otto W. Williams, of lawful age being first duly sworn on oath deposes and says:

That he is the defendant in the above-entitled cause; that on the 3d day of April, 1933, under an execution issued in the above-entitled cause on the 22nd day of March, 1933, L. E. Black, as sheriff of Judith Basin county, State of Montana, levied upon an account or claim filed by this affiant and defendant against Judith Basin county, Montana, amounting to the sum of $49.27.

That said claim so filed by this affiant and defendant against Judith Basin county represents the earnings of this affiant and judgment debtor for his personal services rendered within 45 days next preceding the levy of said execution; that this affiant, defendant in said action, is an actual bona fide resident of the State of Montana; and that he is married and the head of a family, consisting of his wife and five children; and that such personal earnings are necessary for the support of himself and his said family; and that the debt or obligation upon which judgment was rendered in the above-entitled cause was not for necessaries for the use of this affiant or any of his said family.

Wherefore, this affiant, defendant in said action, claims the whole of said personal earnings as exempt from execution or attachment, under the provisions of section 9429 of the Revised Codes of Montana, and demands that the same be immediately released from levy under said exemption."

Specifically, defendants contend that since the affidavit does not aver that the affiant's family was "supported in whole or in part by his labor," the affidavit is insufficient. It does aver, however, that he is "the head of a family." A head of a family is defined in section 6969, Revised Codes, as a person who has residing with him and under his care and maintenance his minor child or children. The affidavit then recites that the "personal earnings are necessary for the support of himself and his said family." The affidavit was sufficient in this respect.

It is next contended by defendants that the affidavit merely stated conclusions and is defective on this account. A substantial compliance with the statute is sufficient and technical objections will not defeat an exemption claim. 25 C.J. 135, 136. "It is not necessary that the claim shall be in any particular language, unless so required by the statute. If the right to the exemption has been substantially asserted it will not be defeated by formal and technical objections. If the terms and wording of the law are followed in making the claim, it is sufficient." 25 C.J. 136.

Defendants rely upon the case of Petrich v. Francis, 83 Cal.App. 72, 256 P. 444, as establishing his contention that the affidavit, following the language of the statute, amounts to but conclusions of law. We have already said that "the mere statement that the property is exempt is but a conclusion of law and unavailing;" State ex rel. Bartol v. Justice of the Peace Court, 102 Mont. 1, 55 P.2d 691, 692; but here the affidavit asserted ultimate facts and not conclusions of law. We cannot subscribe to the holding in the Petrich Case.

The affidavit was sufficient to make a prima facie case calling for countervailing proof. Had evidence been submitted by plaintiff here which conflicted with the ultimate facts or conclusions set forth in the affidavit, then the testimony and not the affidavit would control. Fay Securities Co. v. Bowering, 106 Cal.App.Supp. 771, 288 P. 41. But that was not the situation here. At the trial the testimony of plaintiff supported the affidavit, and there was none in opposition. He testified: "My family and myself were dependent upon my personal earnings and income for support and maintenance during the month of April, 1933." Had defendants desired to cross-examine plaintiff as to the basis for his ultimate facts, they could have done so, but they cannot assert that the affidavit contained mere conclusions. When they proceeded in disregard of the affidavit, they did so at their peril.

Was the warrant exempt in fact? Did the proof show that the sum represented by the warrant was the earnings for personal services rendered within 45 days next preceding the time of the levy? County officers are allowed mileage of 7 cents per mile for distance actually traveled. Section 4884, Rev.Codes. Of the claim of $49.27, the record shows that $32.97 was for mileage. The balance, or $16.30, was for board and lodging. Actual and necessary traveling expenses are also authorized by statute, subject to a maximum of $50 per month. Section 2038, Id. The question then is: Is the mileage and traveling expense properly considered as earnings, within the meaning of section 9429?

A commission of 5 per cent. of the cost of constructing a building has been held to be "wages or hire," within the meaning of an exemption statute. Moore v Heaney, 14 Md. 558. And an allowance to a sales manager of a corporation, of $50 per month for traveling expenses, has been held to be a part of his "wages, salary or hire," within the meaning of an exemption statute. Shriver v. Carlin & Fulton Co., 155 Md. 51, 141 A. 434, 438, 58 A.L.R. 767. The court in the last-cited case said: "These three words, 'wages,' 'salary,' and 'hire' although varying perhaps in their scope, nevertheless express one idea common to them all--compensation for personal services of some kind. And when thus used and applied to the...