Hackett v. Gihl , 63 Mo. App. 447 ( 1895 )

Ellison, J.

An attachment suit against Emile G-ihl was begun by plaintiff. The cause alleged for attachment was that the defendant, Gihl, was about to move out of the state, with intent to change his domicile. A garnishment was served' on the appellant, The National Bank of Commerce. The bank answered, stating that it owed defendant, as its employee, $50, but that said sum was due him as wages for his last thirty days’ service, he being the head of a family and a resident of the state. The contention of the bank is that it is not liable to garnishment for the last thirty days’ service of the defendant, as its employee. It was admitted • that, notwithstanding defendant was about to move out of the state, he was, at time of garnishment, a resident of the state.

The case calls for the construction of sections 539 and 5220, Revised Statutes, 1889. The latter section, after providing that sheriffs, constables, collectors, treasurers, executors, municipalities, .etc., shall not be liable to garnishment under certain conditions, further provides as follows: “Nor shall any person be charged as garnishee on account of wages due from him to a defendant in his employ, for the last thirty days’ service; provided-, such employee is the head of a family and a resident of this state.”

Section 539, after enumerating what property shall be liable to be seized in attachment, provides as follows: “But no property or wages declared by statute to be exempt from execution shall be attached, except in a case of a nonresident defendant, or of a defendant who is about to move Out of the state with intent to change his domicile.” Since the only practical way of attaching wages due would be by garnishment, it is at once seen that the two sections quoted are in apparent repugnancy- Section 5220, in effect, declares that when the defendant is a resident of the state, his employer can not be garnished for his last thirty days’ wages; while section 539, in effect, declares that, though a resident of the state,, if he is about to remove, his wages may be attached — that is, garnished. We must construe the two sections by giving effect to each, if it can be reasonably done, and in this view, we feel constrained to hold that an employer is liable to garnishment for wages due for the last thirty days7 service of his employee, when such employee is about to remove from the state, as mentioned in section 539. Under such construction, section 5220 is treated as though it read like this: “In cases where an employee is the head of a family and a resident of the state, his employer shall not be charged as garnishee on account of wages due him for the last thirty days7 service, except where the employee is about to move out of the state, with intent to change his domicile.77 The exception being the effect given to section 539.

It is contended on the part of the bank that section 539 does not apply to this case, for the reason, among others, that wages are not declared by statute to be exempt from execution. They are not specifically declared to be exempt under the general exemption section found in the chapter on executions. But the last thirty days7 wages are, nevertheless, exempt from execution, except in cases of nonresidency, by force of section 5220, wherein they are declared not to be the subject of garnishment, which would be the only mode whereby they could be collected by execution. We may add the remark here, that it thus appears that while you may garnish the last thirty days7 wages in an attachment, when the defendant is either a nonresident, or about to become such; you can garnish such wages by execution only in cases where the employee is a nonresident. This statutory difference appears, however, in cases of levy of these writs on other property. State to use v. Knott, 19 Mo. App. 151.

The result of the views here expressed is to affirm the judgment.

All concur.