Wright v. Chicago, B. & Q.R. Co.
| Decision Date | 17 February 1886 |
| Citation | 27 N.W. 90,19 Neb. 175 |
| Parties | LUTHER R. WRIGHT, PLAINTIFF IN ERROR, v. THE CHICAGO, BURLINGTON & QUINCY RAILROAD CO., DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county. Tried below before NEVILLE, J.
AFFIRMED.
W. J Connell, for plaintiff in error, cited: B. & M. R. R. v Thompson, 1 Pac. Rep., 622. Mooney v. U. P. R R., 14 N.W. 343. Conley v. Chilcote, 25 Ohio St. 320.
Howard B. Smith, for defendant in error, cited: Pundt v. Clary, 13 Neb. 407. Fitzgerald v. Hollingsworth, 14 Neb. 188. Pierce v. C. & N. W. R. R., 36 Wis. 288. Thompson's Exemptions, §§ 833, 838. Jones v. Comings, 6 N.H. 497.
This action was brought before a justice of the peace by the plaintiff against one L. N. Kintz, to recover judgment on an account assigned to the plaintiff. An affidavit for an attachment was made and filed upon the ground that Kintz was a non-resident of this state, and an order of attachment and notice of garnishment served on the defendant. The defendant thereupon filed an answer as follows:
"Now comes the said Chicago, Burlington & Quincy R. R. Co., and for its answer as garnishee says:
1st. That L. N. Kintz had due him, at the time of the service of the garnishee process in the cause, $ 60 as wages earned in its employ.
2d. That said garnishee did not have at or after the service of the garnishee process upon it in this action any other property, money, rights, credits, or effects of any kind or nature whatever in its possession, or under its control, due or belonging to said L. N. Kintz, defendant.
3d. That said L. N. Kintz, defendant, was hired and employed in, and the contract for said hiring and employment was made in, the state of Iowa, that the service for which said amount is due was performed in said state, and it was agreed between the parties hereto, said garnishee and said defendant, that said wages should be paid in said state; that there has been no demand for the payment of the said amount so due made in the state of Iowa upon the garnishee by said defendant or any other person.
4th. That the cause of action upon which this suit is brought arose in the State of Iowa.
5th. That the assignors, Taylor & Calef, under a pretended assignment from whom the plaintiff in this action claims, were at all times mentioned and still are residents of the state of Iowa; that said L. N. Kintz, defendant, was at all times mentioned herein and still is a married man, the head of a family and a resident of the state of Iowa. The said amount so due as aforesaid is due said defendant as earnings and wages for his personal service performed within ninety days next preceding the service of garnishee process herein; that said amount is not more than sixty days' wages of the said defendant as a clerk in the employ of the garnishee; that under the laws of the state of Iowa the said defendant is entitled to the said amount as exempt from garnishment, attachment, and execution; that the law referred to is as follows: Sec. 3072, Code of Iowa, 1873, provides that any debtor a resident of the state of Iowa, and the head of a family, may hold exempt from execution the following (here follows a specification of the articles exempt). Sec. 3074, Code of Iowa, 1873, is as follows: The earnings of such a debtor, for his personal service or those of his family, at any time within ninety days next preceding the levy are also exempt from execution or attachment.
6th. And further answering said garnishee says: That it is advised that said amount is exempt to said defendant under the laws of the state of Nebraska.
7th. And further answering said garnishee says: That it is a foreign corporation, that it is not a corporation existing under the laws of the state of Nebraska, that it is not a corporation within the county where the action is brought, that the said W. J. Davenport upon whom garnishee process was served in this case has his residence in Council Bluffs, Iowa, that he is present in Nebraska but a few hours each day, that he has no authority to pay out money of said garnishee defendant. That the garnishee is put to great trouble and expense in answering garnishee process in the state of Nebraska, for the reason that the books showing the amount due its employees are not kept in the state of Nebraska, but in the state of Illinois, and its paymaster does not enter the state of Nebraska and has no agent in said state that has authority to audit claims against it or to pay out money for it.
8th. And further answering garnishee says: That it is informed and believes that the pretended assignment under which the plaintiff in this case claims is not bone fide, but was made without consideration, and for the sole purpose of evading the exemption law of the state of Iowa, and that said Luther R. Wright is not the real party in interest in this action, but that the said Taylor & Calef are the real party in interest herein. And garnishee alleges that it may endanger its rights and become involved in expensive litigation if it should be required by the court to pay said amount into court.
Wherefore garnishee prays to be discharged from further liability herein."
The plaintiff thereupon moved to strike from the answer of the garnishee the 3d, 4th, 5th, 6th, 7th, and 8th paragraphs, for the reason that the matter therein contained was "unauthorized and voluntary, and forms no part of the answer of a garnishee," etc. The motion was sustained and the defendant ordered to pay the amount of $ 41 into court to apply on the judgment to be recovered by the plaintiff against Kintz. Afterwards judgment was rendered by default in favor of the plaintiff for the sum of $ 28.89 and $ 12.90 costs of suit, and an order was again entered that the defendant "pay into court the sum of $ 41 of the amount in its possession belonging to said defendant, said sum to be applied in satisfaction of the above judgment." From this order the defendant took the case on error to the district court, where the order of the justice was reversed. The cause is now brought into this court on error to reverse the judgment of the district court.
The amount involved in this case is not large, but the questions presented are quite important, and as they have not heretofore been considered by this court it is necessary to examine the decisions relating to them.
In 1869 the legislature passed "an act to exempt laborers', mechanics', and clerks' wages in the hands of employers from execution, attachment, and garnishee process," which act as amended in 1873 is as follows (General Statutes, 715):
This act is now in force (Comp. St., Code, § 531a). It was passed as an independent act and not as an amendment of the exemption laws. There is no requirement, therefore, that the debtor shall be a resident of the state, and unless we find from other provisions that it was the intention of the legislature to limit the relief to residents of the state, it must be declared applicable to any head of a family whether a resident of the state or not.
A question similar to that under consideration was recently before the supreme court of Kansas, in Mo. P. Ry. Co. v Maltby, 34 Kan. 125, 8 P. 235. In that case the parties were residents of Missouri, and the debt was contracted there, and by the laws of that state the money in the hands of the garnishee was exempt from garnishment, and was also exempt in Kansas. The summons was served on the debtor in Bourbon county, Kansas, and the notice of garnishment on the railroad company in the same county. The railroad company filed an answer claiming it was not liable as...
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Wright v. Chi., B. & Q. R. Co.
...19 Neb. 17527 N.W. 90WRIGHTv.CHICAGO, B. & Q. R. CO.Supreme Court of Nebraska.Filed February 17, 1886 ... Error from Douglas county.[27 N.W. 91]W. J. Connell, for plaintiff.Howard ... ...