Reynolds v. Reynolds , 113 Fla. 361 ( 1933 )

The question attempted to be presented in this case is: are wages which are due to the head of a family residing in this State exempt from garnishment to satisfy a debt due to his divorced wife under a decree of divorce awarding to the complainant wife a specific sum of money to be paid in installments in settlement of certain property rights claimed by her in the divorce suit?

Mrs. Cassie Reynolds, in May, 1932, obtained a decree of divorce against her husband upon a bill of complaint charging him with adultery in most general terms. The defendant suffered a default to be taken against him on the return day of the subpoena and four days afterwards testimony was taken which included a stipulation between the parties in which the defendant agreed that a decree should be entered against him declaring that the sole and undivided ownership of the homestead, consisting of a lot and tenements in Mackmay Subdivision in Hillsborough County, free and clear of all rights or claims on his part, to be in the complainant, and that in addition thereto he should be decreed to pay the complainant the sum of $900.00 in installments of $25.00 per month, beginning January 1, 1932.

Five days after the return day of the subpoena and on the day the testimony in the cause including the written stipulation between the parties was filed the court signed a decree divorcing the parties a vinculo matrimonii and decreeing the property rights in the homestead and the payment of money by the defendant in accordance with the terms of the stipulation.

The decree does not appear to have been recorded in the chancery order book. See Section 4948, C. G. L., 1927.

Mrs. Reynolds on the 31st day of August, 1932, applied by written motion to the chancellor for a writ of garnishment to be directed to I. W. Phillips Company because she said that her former husband had failed to make the July and August, 1932, payments on the decree and she claimed $25.00 as attorney's fee in addition thereto. The order for a writ of garnishment as prayed for was signed thirty days before it was applied for and filed on the day it was applied for.

The writ was issued on the 31st day of August, 1932, and on the 14th day of September the defendant by affidavit set up a claim of exemption of the money due him by Phillips Company on the grounds that the money was due for "personal services rendered and personal labor" by the defendant and that he was the head of a family residing and living in Marion County, Florida. The garnishee entered its appearance. The solicitor for the complainant by affidavit affirmed that the defendant was not entitled to the exemption. The defendant gave a bond for the release of the garnishment on the 3rd of October, 1932, and on the same day the court ordered a release of the property and discharge of the garnishee.

On the 6th day of May, 1933, the court signed an order adjudging the defendant to be not entitled to the exemption and that the complainant "have and recover" from the defendant $50.00 and costs. That order also does not appear from the record to have been recorded in the chancery order book.

A week later the defendant entered his appeal from the order and the same was recorded although no certificate of such record appears in the transcript. The order of the judge directing a writ of garnishment was signed on the 1st day of August, 1932, as appears from the transcript, but it does not appear to have been recorded although it does appear to have been filed and docketed thirty days later on the date the motion for the order was made.

Whether the date of the signing of the order for the writ was a clerical error, a mere misprision of the judge who signed it or the clerk who copied it for the transcript, no one of course can know from an inspection of the transcript. In any event neither that order nor the final decree of divorce appears to have been recorded in the chancery order book, but the statute definitely and expressly provides that no process shall be issued or other proceedings had on any final decree or order until the same shall have been signed and recorded in the chancery order book of the court. See Section 4948, C. G. L.,supra.

It follows, therefore, that the order for a writ of garnishment and the issuing of the writ were without authority of law and as the order for the writ was itself not recorded the writ considered as a process or proceeding had on the order was void and of no effect.

All the orders and proceedings on the decree therefore were without authority of law and in direct violation of the affirmative commands of the statute. They should be set aside and annulled.

So the order appealed from is reversed.

DAVIS, C. J., and WHITFIELD, TERRELL and BUFORD, J. J., concur.

ON REHEARING.