Henry v. West Salem Equity Exchange Co.

FUNK, P. J.:

Epitomized Opinion

On Aug. 1, 1921, Ekey brought suit on an.account against Henry before the mayor of West Salem. The West Salem Exchange Co. was served as garnishee. Long before this suit was brought Henry had given two chattel mortgages, to various parties, one for $60 and one for $151.25, covering among other things certain wheat in -the ground. Two days before the commencement pf the garnishee proceedings, Henry advised The Exchange Co. to apply the proceedings from the sale of. certain grain which he was about to deliver to The Exchange Co. on these mortgages and turn over the remainder to him. On the day on which, the garnishee was brought, two wagon loads of wheat were delivered to The Exchange Co. and another load delivered on Aug.. 3rd. The value of the three loads amounted toj $223.37. Henry confessed judgment in the mayor’s court in favor of Ekey for $125.17, and on the same day his wife filed_ an application for the money in the hands of garnishee to be paid to her in lieu of a homestead. The mayor ordered the garnishee t¡o pay the $223.37 to Mrs. Henry. Instead of doing this the garnishee paid the amount due on the chattel mortgages and tendered the $4.57 remaining to the mayor. Mrs. Henry then commenced a separatfe suit before the mayor to recover $223.37 from thcj garnishee for its failure to obey the orders of thé mayor’s court. Plaintiff obtained a default judgj-rnent. Thereupon The Exchange Co. appealed tci the common pleas court. . Plaintiff recovered a judgment for $4.57 in the common pleas court. Plaintiff then prosecuted error to the Court of Appeals. In affirming the judgment of the common pleas court the Court of Appeals held: I

1. Where a magistrate finds a wife entitled to fl homestead exemption out of funds in the hands of fl garnishee, upon the refusal of a garnishee to turfl over funds, the wife can maintain a separate actiofl against such garnishee to determine her rights, fl

2. Under Gen. Code 10,276, a garnishee is nclj bound by the order of a magistrate’s court in attach ment and the only way such order in attachmen can be enforced against a garnishee is by a separat action brought against the garnishee.

3. The garnishee can set up any defense he maj have in an' action against .him for not obeying ar order of the magistrate’s court.