Citation Numbers: 90 R.I. 317
Judges: Condon, Frost, Paolino, Powers, Roberts
Filed Date: 2/12/1960
Status: Precedential
Modified Date: 10/17/2022
This is an action of assumpsit wherein the plaintiff commenced suit by a writ attaching the personal estate of the defendant in the possession of the treasurer of the city of Warwick. The case is before us on the plaintiff’s exceptions to the rulings of the superior court denying its motions to charge the garnishee and to enter a nil dicit judgment for the plaintiff.
The defendant, who had been duly served with process, neither entered an appearance nor filed an answer and was consequently defaulted. Thereafter plaintiff’s motion to charge the garnishee was denied by the district court whereupon plaintiff prosecuted an appeal to the superior court.
In the superior court plaintiff filed motions to charge the garnishee and to enter a nil dicit judgment against defendant, and he set them down for hearing on a date prior to assignment day. At such hearing counsel for the garnishee argued that a motion for a nil dicit judgment could not be heard before the assignment day. After the hearing the court denied the motion to charge the garnishee, apparently on the ground that the money in question was not subject to attachment by virtue of §9-26-5. The court also denied the motion for a nil dicit judgment without stating the ground on which it based such ruling.
The plaintiff’s exception to the denial of its motion to charge the garnishee is based on its contentions that defendant had no interest in any pension fund or in any pension derivable therefrom within the meaning of §9-26-5 and, even if he had such an interest, the assertion of the claim of exemption by the garnishee was insufficient, since under the statute the person for whose benefit the exemption exists
The pertinent language of §9-26-5 is as follows, “No interest of any person in any pension fund or in any pension derivable therefrom, for the benefit of policemen or firemen * * * shall foe subject to trustee process or liable to attachment on any writ * * This language is clear and presents no ambiguity. In our opinion defendant’s undisputed right to a refund of the money which had been deducted from his salary and paid into the pension fund clearly constituted an interest in such fund within the meaning of the statute.
The question remains whether the statute excludes such an interest from attachment or whether, in order to receive the benefit of the statute, the person for whose benefit it exists must personally claim the right thereto.
The statute in question does not set up a method of claiming an exemption. In fact it does not refer to exemptions at all. In this respect the language of §9-26-5 differs materially from the provisions of §9-26-4. Section 4 expressly provides for the exemption of the goods and property therein enumerated. Section 5 contains no similar language, but clearly excludes from trustee process or attachment the interest of any person in the pension fund therein described. By virtue of said section the interest of defendant was not liable to attachment and the purported attachment of the money in question was therefore invalid. Since the money in question is not subject to attachment, it necessarily follows that there is no requirement under §9-26-5 compelling the person for whose benefit the statute exists to personally claim such benefit. Sherrible v. Chaffee, 17 R. I. 195, cited by plaintiff, and McKenna v. Lucas, 21 R. I. 509, cited by garnishee’s counsel, are not in point. Those cases are not only factually different from the case at bar, but, what is more important, they do not involve §9-26-5. The second exception is overruled.
We come now to plaintiff’s first exception under which
, The plaintiff on the other hand contends that in the circumstances of this case the superior court was required by G. L. 1956, §9-21-1, to enter a nil dicit judgment for plaintiff since the writ was neither answered nor pleaded to by defendant and was therefore a defaulted case within the meaning of that section. The pertinent provision thereof reads, “Upon default or submission of the defendant in any case at law, judgment shall be entered at any time thereafter on ex .parte motion and proper proof of claim.”
It is our opinion that under §9-21-1 the superior court was required to enter a judgment for the plaintiff and its failure to do so was error. Mathewson v. Lewis, 33 R. I. 398. While it is true that some distinctions have been noted bétween a judgment by default and a nil dicit judgment, such distinctions are not material and do not nullify the clear mandate of §9-21-1. See 49 C.J.S. Judgments §187.
The plaintiff’s second exception is overruled, its first exception is sustained, and the case is remitted to the superior court with direction to enter judgment for the plaintiff upon proper proof of claim.