Schooley v. Schooley

Weaver, J.

1. Exemptions: alimony non-collectible from personal earnings. The plaintiff, Belle Schooley, and the defendant were formerly .wife and husband. On January 9, 1912, in an action brought by the plaintiff against said defendant, and then pending in the district court of Woodbury County, a decree of ... . _ _ , _ _ divorce was entered.. In the same proceeding, the plaintiff secured judgment against defendant for a stated sum as alimony, payable in installments during her life, or until she marry again. She has not, in fact, contracted any marriage since the divorce. On December 10, 1913, the defendant married another woman, with whom he has ever since lived and maintained family relations in Woodbury County. Certain installments of the judgment for alimony are past due and unpaid. For several years, the defendant has been, and still is, employed in the service of the Chicago & Northwestern Railway Company, at a stated salary, or wages, payable monthly. In August, 1914, plaintiff caused an execution to issue upon such judgment for alimony, under which writ the railway company was garnished, as a supposed debtor of the defendant, the purpose of such garnishment being to reach and subject to the payment of such judgment the wages earned by him in the company’s service. Defendant appeared in such proceeding, and moved to discharge the garnishee, on the ground that his wages were exempt to him, as a married man and head of a family. On the hearing upon this motion, the court sustained the claim of exemption, because of his status as a married man and head of a family, and ordered the discharge of the garnishee. In August, 1916, plaintiff caused another execution to issue, and the railway company to be again garnished thereunder. The railway company answered, showing that, at the date of the garnishment, it was indebted to defendant in the sum of 66.91 for wages earned by him within the period of 90 days preceding. Again defendant appeared, and moved to discharge the garnishee upon the same ground of exemption. This motion was also sustained, and the garnishee ordered discharged; and from such order and judgment, this appeal has been taken.

The foregoing sufficiently indicates the one question presented for our consideration: May a divorced husband who has married again and thus becomes the head of a family avail himself of the exemption provided by Code Section 4011, against an execution issued upon a general judgment for alimony rendered in favor of his first wife?

Counsel for appellant take the negative of the proposition, and in support of their position, have filed a very well-prepared brief, marshalling the authorities on which they rely, and discussing very lucidly the principles which they believe to be applicable to the undisputed facts in this record. That some of the precedents cited do appear to hold substantially as counsel claim, is to be admitted; but that they should be accepted by us as controlling authority, we are not ready to concede. Taking the country over, there are perhaps no two states in which the exemption statutes are so nearly identical that the construction and effect given to one in one jurisdiction may be said to be satisfactory precedent for the construction and effect of another in another jurisdiction. Again, there is no uniform policy of the courts in general with respect to these laws. In some, they are construed and applied with great liberality in favor of the debtor and his family; while in others, the tendency is to the opposite extreme, and the debtor gets little which is not assured to him by the strict and technical letter of the statute. Exemptions being strictly creatures of the statute, the question when the right exists, and the scope of such right, resolves itself, in final analysis, into one of construction of the legislative language; and in such matters, the courts of each state ordinarily adhere to their own views of the expressed legislative intent. Our exemp; tion statute, Code Section 4008, first provides that, “if the debtor is á resident of the state and the head of a family, he may hold exempt from execution” certain specified items of personal property, varying, to some extent, as it shall appear that the debtor is a farmer, mechanic, lawyer, or teamster, etc. Code Sections 4009 and 4010 exempt pension money and homes bought with pension money. Section 4011 of the Code is as follows:

“The earnings of a debtor .who is a resident of the state and the head of a family for his personal services, or those of his family, at any time within ninety days next preceding the levy, are exempt from liability for debt.”

In the case before us, the divorce had the effect to restore the husband and xxife to the status of unmarried persons, with full and unrestricted right to each to marry again, the same as if their marriage relation had never existed. So long as he retained that status, defendant’s wages Avex’e, of course, subject to garnishment, because he was not one of the protected class; for, though he xvas a resident of the state, he was not the head of a faxnily. Bxxt when lie married, as he legally might, a woman having the legal right to take him as her husband, axid established their home in the county, he became, literally and undisputably, the head of a family and a residexxt of the state; and his right to the exemption of his xvages is too clear for argument, unless he is to be excluded therefrom xxpon the theory advanced by counsel, to which we shall noxv give attention.

2. Words and phrases: “debt.” The point so made is that the language of the statute is that “earnings of a debtor who is a resident of the state and the head of a family for his personal sexwices * * * air exempt from liability for debt;” and it is argued that this does not include exemption from liability for payment of a judgment for alimony, because an allowance of alimony is not, in a legal sense, a “debt.” Oases are cited which do draw a distinction between a claim for alimony and debt; but very few will be found holding that a claim for alimony which has been reduced to final judgment is not the debt of him against whom it is rendered. On the contrary, the great weight of authority is decidedly the other way. Speaking of the entry of a decree for alimony, the Supreme Court of the United States says, “When' this is done, it becomes a debt of record.” Barber v. Barber, 21 How. (U. S.) 582, 595. Speaking of absolute and limited divorces, the Massachusetts court says, “The judgment for alimony in either case creates a debt of record in favor of the wife.” Chase v. Chase, 105 Mass. 385, 388. A debt is something due or payable from one person to another, and may be created by contract or judgment. Summit Silk Co. v. Kinston Spinning Co., 154 N. C. 421; Arbaugh v. Shockney, 34 Ind. App. 268 (72 N. E. 668, 669); Mayor, etc., v. Hurt, 140 Ala. 394; Lothrop v. Parke, 202 Mass. 104; In re Kinsolving, 135 Mo. App. 631 (116 S. W. 1071); In re Van Orden, 96 Fed. 86, 88; Mertz v. Berry, 101 Mich. 32. Our own cases are quite in harmony with this view. See Whitcomb v. Whitcomb, 52 Iowa 715, 718. In this last cited case, the wife obtained a general judgment for alimony, and after-wards sought to enforce it against the husband’s homestead. This was denied, the court saying:

“The judgment is but a debt, and the plaintiff thereunder is not entitled to precedence, or greater rights than would be the holder of any other judgment.”

See, also, Byers v. Byers, 21 Iowa 268. Indeed, we think we need look no further than to the statute itself to see that the words “debt” and “debtor” are used in their more general and less technical sense, and that the statute provides for exemption from execution issued upon every and any general judgment against the head of a family for the payment of money. In Code Section 4008, which is the section providing the general list of exemptions, the word “debtor” is repeatedly employed. The exemptions are expressly made in favor of the “debtor” if a resident of the state. It is the “debtors” wearing apparel, trunks, shotgun, family Bible, portraits, church pew, burial lot, tools, implements, team, etc., which are secured from seizure under execution or attachment; and, if the appellant’s theory be correct, that a judgment rendered against a litigant upon any other claim than that of a debt by contract, in its restricted technical sense, is not a debt, within the meaning of this statute, then the door is opened to stripping the impoverished debtor and his family of every earthly possession, save, perhaps, the clothes upon their backs, in favor of any person who may happen to recover. judgment against him upon any cause of action not originating in contract. We feel very sure that such is not the legislative intent. One against whom a judgment for the payment of money is rendered is universally known and spoken of .as a “judgment debtor,” and the claim against him is recognized as a “judgment debt.” It is, to use the language of the cases already cited, a “debt of record,” or, as called by some, “a judicial debt of record.” It is a debt — a binding obligation to pay a stated sum of money, fixed by judicial determination. If, before judgment, the plaintiff’s claim ywas unliquidated, and the obligation to pay was imperfect, that condition ceased with the judgment entry. What was before uncertain is now certain. A writ of execution is noth-. ing less or more than a process by which such debt may be enforced against the judgment debtor’s property, if any he has, which is subject to seizure; and property so levied upon is taken for that purpose: i. e., for the payment of his debt. The protection against such seizure which the statute of exemption provides is in favor of residents of the state Avho are married, and are heads of families. Mr. Bouvier says that debts arise or are proved by matters of record (as judgment debts), by bonds, and by simple contract.

“The word ‘debt’ is of large import, including not only .debts of record, or judgments, and debts by specialty, but also obligations arising under; simple contract, to a very wide extent; and in its popular sense includes all that is due to a man under any form of obligation or promise.” Gray v. Bennett, 44 Mass. 522, 526.

Debt means a liability to pay a sum certain; and it makes no difference how the liability arises, whether by contract or whether it be imposed by law without contract. Rhodes v. O’Farrell, 3 Nev. 60, 61. See, also, Webster’s International Dictionary; Rap. & L. Law Dictionary. The Constitution of North Carolina provides for the exemption of homesteads from sale under execution for any debt; and this has been held to include exemption from levy under execution on a judgment rendered in an action ex delicto. Dellinger v. Tweed, 66 N. C. 206, 210. The proposition would also seem to have been finally settled for this court as far back as the case of Johnson & Stevens v. Butler, 2 Iowa 535, 545. There, the plaintiff sued at law upon a judgment rendered in Illinois in an action ex dettcto. The suit was brought and an attachment sued out in this state on the theory that the action on the judgment was ex contractu. The trial court ruled, in effect, that the action upon the judgment must be treated as partaking of the nature of the original action: that is, ex delicto. This court overruled the trial court, saying:

“But when a judgment has been recovered for tort, it then becomes, fixed and certain. Tt is a debt, as much as if it were recovered upon a promise.”

The same proposition is reiterated in Warner v. Cammack, 37 Iowa 642. Other authorities of like character could be multiplied quite indefinitely. If the plaintiff were now standing in court, asking an allowance of alimony, it could well be admitted that her action in that respect was not ex contractu; or rather, that such claim is not a debt, in the restricted meaning of that word. And yet marriage is a civil contract between the parties, a contract which implies an obligation for support; and it is in recognition of such implied contract that alimony is allowed. It remains unliquidated, however, until the court has fixed it by judgment; but thereafter, it would seem that it must be regarded as a debt by contract,-as well as by judgment.

Much is said iii argument of the injustice of such results in cases like the one at bar, and that defendant ought not to be allowed to clothe himself with such right of exemption by marrying again. If it should be admitted that the statute could well have been made to'accord with appellant’s contention of absolute justice, it is sufficient to say that it was not so made. The marriage relations of the parties were severed at the option of the plaintiff, it was in accordance with her prayer that the divorce was granted, and she was given her freedom from the bonds of matrimony, with a general judgment for a specified amount of alimony. She ceased to be a member of his family, and .the only relation thereafter existing between them was that of judgment creditor and judgment debtor; and, as a judgment creditor, she became vested with the same rights to enforce collection of'her claim which the law gives to all other creditors of that class. It is' not to be overlooked that the exemption laws are not intended simply for the protection of the debtor, but primarily for the protection and support of his family; and to that end, the statute will be liberally construed. The defendant is the head of a family of which the plaintiff is not a member. The woman who married him is his lawful wife; and it would be a law of at least doubtful justice which would, deprive her of the protection of the statute for the benefit of the former wife, who, in accepting a general judgment in her favor, must be held to have impliedly consented to take it subject to all legal limitations upon her right to enforce it. The statute, so far, at least, as relates to the exemption of the debtor’s earnings, is too clear and certain to permit of construction. To repeat, the defendant is a resident of the state, a married man, and the head of a family, and is, therefore, within the literal description of the exempt class. The statute provides no exception from its terms. The earnings garnished were within the ninety-day period. The trial court could not have done otherwise than it did, without repealing the statute by judicial construction, or engrafting thereon an exception for which the legislative language affords no foundation whatever.

The judgment appealed from is — Affirmed.

Preston, C. J., Evans and Gaynor, JJ., concur.