Wyrzykowski v. City of Hamtramck, 62.

• Decision Date: 18 May 1949
• Docket Number: No. 62.,62.
• Citation: 37 N.W.2d 686,324 Mich. 731
• Parties: WYRZYKOWSKI v. CITY OF HAMTRAMCK et al.
• Court: Michigan Supreme Court

324 Mich. 731

37 N.W.2d 686

WYRZYKOWSKI

v.CITY OF HAMTRAMCK et al.

No. 62.

Supreme Court of Michigan.

May 18, 1949.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County; Frank B. Ferguson, judge.

Action by Mary Wyrzykowski against Charles F. Budds, wherein after judgment was obtained against the principal defendant, garnishment proceedings were instituted against the City of Hamtramck, a municipal corporation. From the judgment quashing the writs of garnishment, and entering judgment of no cause of action as against the garnishee defendant, the plaintiff appeals.

Order affirmed.

Before the Entire Bench.

Harry J. Lippman, Detroit, for appellant.

Stanley J. Draganski, Hamtramck, for garnishee defendant-appellee.

Julian F. Russell, Detroit, for principal defendant-appellee.

REID, Justice.

Plaintiff obtained judgment against the principal defendant on March 27, 1947, for $15,200 damages and $179.50 costs. From such judgment no appeal was taken and we are concerned only with the garnishment proceeding instituted after judgment.

Plaintiff caused several writs of garnishment to be issued against the city of Hamtramck as garnishee defendant to obtain satisfaction of the judgment in part from installments of a retirement pension accruing to the principal defendant from the pension fund of the defendant city. Defendantcity filed a disclosure and answer denying liability but admitting the accrual of the total amount of $206.25 as ‘police disability pension benefits,’ and claiming that said amount and any further subsequent amounts that may be due thereafter, as police disability pension benefits, are exempt from the garnishment proceeding and other legal process, and setting forth the history of the police pension benefits as provided by the charter of the city of Hamtramck.

On trial of the statutory issue, the trial court quashed the writs of garnishment and entered judgment of no cause of action as against the garnishee defendant.

The principal defendant Charles F. Budds after more than 18 years' faithful service as a police officer of the city of Hamtramck, was, upon his application, in accordance with sections 1, 2 and 3 of the amended charter of the city of Hamtramck, retired for disability. The retirement was approved by resolution of the common council of the city of Hamtramck, June 27, 1944. Thereafter, defendant Budds became entitled to pension benefits at the rate of $68.75 every two weeks, payable from the pension fund. This fund was derived through taxation, collection of fines, emoluments, and five per cent. deductions from the pay of the police officer under section 11 of the city charter. It appears that defendant Budds was on such retirement when the judgment beforementioned was rendered against him. The writs of garnishment in this cause were served after the pension allowances had been deducted for the periods covered from the police pension fund, and after the redeposit of those funds to the payroll fund of the city treasurer and after the issuance of checks (marked as pension checks) to the pensioner, drawn on the payroll fund, and before the delivery of such checks to the pensioner defendant Budds.

Plaintiff brings her garnishment against the city of Hamtramck under § 628.46, Comp. Laws 1948, Stat.Ann. § 27.1900 which section in part is as follows: ‘All corporations of whatsoever nature, the state of Michigan and every county therein, may be served and proceeded against as garnishees in the same manner and with like effect as individuals under the provisions of this chapter and the rules of law relative to proceedings against corporations'. (Italics supplied.)

The section of the charter of the city of Hamtramck under which defendant city claims the benefits in question are exempt from garnishment or other legal process, being section 14, is as follows: ‘No moneys owed to any disabled or retired person described in this chapter or his widow or to his children or dependents, shall be held, seized, taken or detained, or levied on by virtue of attachment, execution, injunction, writ, interlocutory or other order or decree or any process or proceeding whatever issued out of any court of this state for the payment of satisfaction in whole or in part of any debt, damages, claim, demand or judgment, against any such person described in section 1 of this chapter, guardian of any minor child or children, dependent parents of any deceased firemen, policemen, or member of the police signal and fire alarm systems. And no pensioner shall have the right to assign, his or her pension or any part thereof. But said money shall be sacredly held, kept, secured and distributed, for the purpose of pensioning the persons named and for no other purposes whatever.’ (Italics supplied.)

Plaintiff claims that this provision of the charter of the defendant city contravenes the statute of the State, Stat.Ann. § 27.1900, above cited. While writ of garnishment is not expressly named in the quoted section of the charter, the section is so worded as to prevent garnishment of the pension moneys. The two defendants, garnishee and principal, both contend that the quoted section of the city charter was well within the power of the city...