Davis v. Siegel, Cooper & Co. , 1898 Ill. App. LEXIS 415 ( 1899 )

Mr. Justice Adams

delivered the opinion of the court.

Counsel for plaintiff rely on the Garnishment act, and especially on section 5 of that act, which, as judicially construed, requires the garnishee to answer as to indebtedness to the judgment debtor, “first, when the debt is owing and due at the date of service; second, when it is owing at the date of service and .becomes due thereafter; and, third, when it is owing and due at any time after the service of the writ, up to the date of the answer.” Hanover F. Ins. Co. v. Connor, 20 Ill. App. 297, 309.

Counsel further contend that the payment to Davis of his wages, in advance of his earning them, was fraudulent as to plaintiff and collusively evasive of the statute, and also that section 14 of the Garnishment act, as amended by an act in force July 1, 1897, constitutes no defense to the claim against the appellee. Section 14, as amended, is as follows:

“ The wages for services of a defendant, who is the head oif a family and residing with the same, to the amount of eight dollars per week, shall be exempt from garnishment. All above the sum of eight dollars per week shall be liable to garnishment. Provided, the person bringing suit shall first make a demand in writing for the excess above the amount herein exempted. Ho costs or expenses shall be chargeable to the defendant, unless he shall refuse to turn over to the creditor the amount due him that is herein exempted, upon such written demand.”

Counsel for plaintiff contend that the Garnishment act, including amended section 14, should be construed liberally in favor of the remedy. Section 14 is for the benefit of the judgment debtor and his family, and in Bliss v. Smith, 78 Ill. 359, the court, commenting on a similar section in the -Garnishment act of 1872, say:

“ The statute was enacted for a humane purpose; for the benefit of the debtor’s family as well as himself; and should receive a fair and liberal construction that it may effectuate the beneficent object the legislature had in view.”

In Bliss v. Smith, supra, and also in Hoffman v. Fitzwilliams et al., 81 Ill. 521, the court held that section 14 of the act of 1872 had no application to wages earned after service of the garnishment writ, basing this decision partially on the ground that the section only authorized garnishment of the excess over $25 in the hands of the garnishee.

Does section 14, as amended, authorize garnishment of wages earned after service of the writ \ The section provides that, as a condition precedent to bringing suit, “The person bringing suit shall first make a demand in writing for the excess above the amount herein exempted. No cost or expenses shall be chargeable to the defendant, unless he shall refuse to turn over to the creditor the amount due him above that herein exempted, upon such written demand.” It must be admitted that the provision is not very lucid. The person mentioned as “ defendant” in it, is apparently the judgment debtor, he being named as defendant in the first line of the section. If this view is correct, it is on the judgment debtor that demand must be made. If, on the contrary, the intention of the statute is that the demand shall be made on the garnishee, then, in this case, there was no demand, a demand having been made only on Davis, the judgment debtor. The provision must receive a reasonable and practical construction. It can not be presumed that the making demand was intended as a mere form, or that a demand was intended of such nature that it would be nugatory by reason of the impossibility or impracticability of compliance with it. The law does not require performance of useless acts. The demand intended is one which can be complied with by the person on whom made, riot one which he can not comply with. Clearly, a debtor can not comply with a demand to turn over to the judgment creditor wages which the former has never earned and may never earn. He can not turn over that which is non-existent, and if, by a proper construction of the section, the demand should be made on the garnishee, it is plain that the latter could not be required to turn over unearned wages.

We are therefore of opinion that the statute does not contemplate the garnishment of unearned wages.

July 26, 1897, a demand in writing was made on Davis, of which the following is a copy:

“ S. L. Davis, Esq.

You are hereby notified that I hold against you a judgment for one hundred and seventy-five dollars ($175) and costs and interest, rendered in the Circuit Court of Cook County, Illinois, (case No. 163,358), which remains wholly unpaid and unsatisfied.

I therefore demand that you pay me on account of said judgment all your salary due or to become due to you from Siegel, Cooper & Company in excess of your legal exemption of eight dollars ($8) per week, as the same becomes due to you.

And in default of your complying with this demand, I shall hold you liable for such excess in an action of garnishment as by the statute I am entitled.

Dated at Chicago, this 26th day of July, 1897.

Respectfully,

Edwd. K. Boyd.”

For the reasons stated, this demand was of no effect as to unearned wages, and we are of the opinion that, in view of the evidence, it wa.s ineffective for any purpose. There is no evidence that there was anything due to Davis from the garnishee when the notice was served, or even that at that time he was in the employ of the garnishee. The evidence shows that he was in the garnishee’s emplo.y August 6,1897, and it would appear from the remarks of counsel for the respective parties, on the trial, that he was in the garnishee’s employ prior to August 6, 1897; but how long prior to that date does not in any way appear and can not be presumed. The answer of the garnishee is, as before stated, that August 6, 1897, the garnishee advanced Davis a week’s salary, also that on the first day of every week thereafter, up to the time of filing its amended answer, it had advanced him a week’s salary; that during said time it owed him nothing, and that at the date of the service of the writ, it was not in any way indebted to him. Plaintiff relied solely on the garnishee’s answer in respect to its indebtedness to Davis.

There having been nothing due to Davis at the date of service of the writ, and holding, as we do, that the statute has no application to unearned wages, this is conclusive as against plaintiff’s claim.

But aside from the foregoing considerations, the judgment must be affirmed. By section 1 of the Garnishment act, there must be a judgment, the issuance of an execution and a return of the execution “ Bo property found,” in order to maintain the garnishment. Railroad Co. v. Keohane, 31 Ill. 144; Dunderdale v. W. Electric Co., 51 Ill. App. 407; D. Laundry Co. v. C. & A. R. R. Co., 55 Ib. 438; P. I. & I. Co. v. Olson, 63 Ib. 313.

In the present case, there was no evidence that an execution ever issued. The affidavit for garnishment process avers that an execution was issued and returned “ Bo property found,” but the affidavit is not evidence, nor is it contained in the bill of exceptions.

We find no error in the refusal of propositions submitted by plaintiff as propositions of law.

The judgment will be affirmed.