Dickinson v. Johnson

61 S.W. 267, 110 Ky. 236, 1901 Ky. LEXIS 78

• Court: Court of Appeals of Kentucky
• Decided: March 6, 1901
• Status: Published

Opinion

Opinion op the court by

JUDGE GUFFY

Reversing.

The appellee 'William P. Johnson is, and has been for several years, clerk of the Jefferson County Court, entitled to a salary, payable by the State, amounting to $5,000 per annum. The other appellee is his wife. Some time prior to the institution of this action the appellant obtained a judgment in the Jefferson Circuit Court against the said William P. Johnson for the sum of'$3,313.12, with interest from August, 1897, upon which judgment execution was issued to the proper county, which was returned by the sheriff, in substance, “No property found.” The object of this action is to enforce the collection of said judgment. The two principal funds or items of property sought to be subjected are a reasonable portion of appellee’s salary and certain real estate in Jefferson county which is alleged to have been purchased and paid for, to the extent that it has been paid for at all, by the said William P. Johnson, but that the same was conveyed to the wife, Emma Johnson, for the purpose of delaying, hindering, and defrauding the creditors of the said William P. Johnson. It is also alleged in the petition that William 1?. Johnson, Jr., a son of the said appellee, and a minor, is working for a salary of $2,000. The prayer of the plaintiff, in substance, is for an attachment against the property of said William P. Johnson, and that he be compelled to make a discovery of any money, choses in action, or legal and equitable interests, or any other property, and the amount of same, and. to disclose when and in what sums and how the salaries of himself and son are collected, and that so much of the said property be subjected to the satisfaction of plaintiff’s claims as is necessary, and that the real estate and improvements be adjudged the property of said William P. Johnson, and that the same be subjected to the satisfaction of his debt, and that out of his salary he be required, to provide for and pay this judgment, and for all proper and equitable relief, general and special. The answer of the apices, after denying that either Johnson or any. of his family are living upon or occupying the ground or premises described in the petition, states1, in substance, that the title to the property was not placed in the said Emma for the purpose of delaying creditors, and that appellee, William, should not be required to set apart any of his salary for the payment of plaintiff’s debt. The answer further avers, in substance, that the salary is paid to him for services as clerk of the Jefferson County Court, and that he has no interest, or right over any part of the salary paid to Ms son William P. Johnson, Jr., or that he exercises or ever has exercised any right to said salary, aud that he would not have any right so to do. It is then further stated that, long before the giving of the note upon which the judgment was rendered, he was indebted to his wife in the sum of more than $20,000, and long before the transfer of the land; that he is now county clerk as aforesaid, and (hat under and by virtue of the laws of Kentucky the said salary is exempt from execution, attachment, or garnishment; that, in part satisfaction of his indebtedness to the said Emma, he did assign and transfer the salary, to be paid to him to her, the said Emma, and out of said salary so transferred the said Emma made the payments that have been made on the property, etc. It is also claimed that they have been occupying the same as a home, and only temporarily absent. The reply may be considered a complete traverse of all the matters relied on as a defense. Upon final hearing the court adjudged in favor of the appellees, and from that judgment this appeal is prosecuted.

It is the contention of appellee that under no state of ease could he be required to set apart any part of his salary for payment of the debt in question. He also contends that he had received, many years before he incurred the debt sued on, a large amount of money from his wife, and that he had a right -to pay the same to her, either by an assignment of the salary, or by having the land iu question conveyed to her. The appellant contends that, 'after allowing the said appellee, Johnson, a sufficient .amount of the salary to 'support himself and family in a style commensurate to his* surroundings and social position, he should be required to set apart annually, or from time to time as his salary is paid, the surplus, to be applied to the payment of the judgment sued on. Appellant'further contends that the money received by appellee from his wife was not an indebtedness of appellee, and that the payment for the real estate in question was in fact and law paid for-by or with appellee’s money, and therefore the real estate is liable or ought to be subjected to the payment of plaintiff’s claim. It . is further contended by -appellant that the question involved! as to the salary has* never been passed upon by this court; that the decisions heretofore rendered where parties sought to garnish fees or salaries of officers have no application to the question involved in this case. It is not contended that the plaintiff could attach salaries in the hands of the State or its officers, and require the money to be paid directly to the plaintiff, but it is contended that the court may lawfully require the appellee to pay into court or to its receiver, in installments, so much of the salary as is not necessary for his support as aforesaid. Many authorities a.re cited by appellant.

We are not aware of any decisions of this court in which the precise question here presented has ever been passed upon, nor do we find any statute1 expressly providing that officers’ fees or salaries shall not be subjected to the payment of debts against them. But it is very earnestly contended for appellee that various decisions of this court announce the doctrine that it is contrary to public policy to so subject the fees or salaries of officers. But, as- before intimated, the appellant contends that no such rule or doctrine is contained in any of the decisions in this court, and' refers us to many decisions which, as he assumes, sustain his contention. We will now proceed to notice some of the authorities from States other than Kentucky relied on in support of appellant’s contention: Pendleton v. Perkins, 49 Mo., 565, is cited. The court in that case held that, notwithstanding municipal corporations are- exempt by statute' from creditors’ bills or garnishment, nevertheless money due the defendants in the city treasury might be- subjected by proceedings in equity for the payment of plaintiff’s claim. But from the opinion in this case we find that the debtor was not an officer. And it seems that, even in the absence of such statute, it has been held that towns and cities could not be garnished for a .sum due an officer as part of his salary. Fortune v. City of St. Louis, 23 Mo., 239; Hawthorn v. Same, 11 Mo., 59. The court further said: “Public policy forbids creditors from thus stepping in between tlie city and its public servants; and a statute, in seeking to prevent any future attempt in that direction, went much further, and included all kinds of liabilities, so that a debtor’s funds, if in the hands of a municipal corporation, are placed beyond the reach of his creditors by statutory garnishment.’’ The court, however, held in this case that the funds of the debtor were not exempt simply because the same are placed in the city treasury, or under the control of the city. Dill. Mun. Corp., section 101, is also cited, together with the notes. We are unable to see that either the author or the notes sustain appellant. The weight of authority referred to by the writer, as well a-s his own opinion, seems to be, even in the absence of státute, that municipalities are not subject to garnishment for the salaries of its officers. The case of Luthy v. Woods, 1 Mo. App., 167, holds that, although a municipality is not subject to garnishment, a debt due from it to a debtor may be reached by proceedings in equity, and subjected to the payment of plaintiff’s claim, although the municipality is not subject to garnishment. But it does not appear in this case that the debt there subjected was the salary of an officer. We are unable to see that the opinion in McDermott v. Strong, -i Johns. Ch., 690, has any bearing upon the case at bar. In Lyell v. Board, 3 McLean, 580, Fed. Cas. No. 8,621, the plaintiff sought to subject certain bonds, mortgages, and assets under the control of defendants for payment of two judgments at law recovered against them. The court below sustained a demurrer, but the supreme court reversed the judgment, and, after a discussion of the questions involved, from which it appears- that under the statute of Michigan the county might be sued, said: ‘‘The county being made subject to a suit, no serious objection is perceived against reaching the rights in question by the ordinary exercise of chancery powers, independently of statutory provisions.” It appears! from the opinion in Furlong v. Thomssen, 19 Mo. App., 364, that the court held that a debt due by a municipal corporation to its creditor may, by a creditors’ bill, be subjected to the satisfaction of judgment against the latter. In this case it appears that the debt due Thomssen was for erecting an engine house for the city. In Browning v. Bettis, 8 Paige, Ch., 568, it is, in substance, held that the salary or compensation to become due at a future time for the performance of services which had not been completed at the 'time of filing the bill could not be reached by a creditor’s bill. But where all the services, to entitle defendant to his salary or compensation, had been rendered at the time of filing the complainant’s bill, such salary or compensation may be reached by the creditor, although it had not become actually payable -when the bill was filed. It seems that the defendant in this case was a census taker. It was decided in McCoun v. Dorsheimer, 1 Clarke, Ch., 144, that the unearned salary of an officer can not be reached by creditors’ bill, but so much of the salary as is earned and due at the time of the filing of the bill may be subjected. The same doctrine announced in the case, supra, is reaffirmed in Smith v. -, 4 Edw. Ch., 653. The object there sought was to subject one quarter’s salary of one of the judges of New York City. It may be inferred from the decision in Hadley v. Peabody, 13 Gray, 200, that the Supreme Court of Massachusetts sustains the doctrine announced in the foregoing opinions. The Supreme Court of Arkansas decided in Riggin v. Hilliard, 56 Ark., 476, (20 S. ), that (we quote from the syllabus), “While a county is not subject to the ordinary process of garnishment, yet, in equity, when the interest of the- public' will not be injuriously affected, the claim of an insolvent creditor-of the county may be subjected, by safe or compulsory-assignment thereof, to the payment of his debts.” The demand sought to be subjected was a debt due from the-county to the defendant for repairing tie court house. The court, in the opinion,, said: “The courts commonly concur in holding that public policy forbids any interference between the county and its contractor under-such circumstances if the work is still in progress, for-the interference would tend to retard' the occupancy of the building.” The court, in discussing the fact that the-county could not be sued, recognized the- doctrine to bet-hat a county was not Subject to- garnishment, and ini referring to the case of Boone County v. Keck, 31 Ark., 387, said: “It was a suit directly against the county. The plaintiff’s judgment debtor was not a party to it, aDd' the only relief asked was against the county. In the case-at bar the plaintiff’s debtor is- the party against whom relief is sought, and the county is not sued. Therein lies the cardinal difference between the cases.. The complaint, states a cause of action against Hilliard, and shows a right in the plaintiff to subject the debt due by the county to the satisfaction of his demand. That can be accomplished under proper orders of the court, as by a sale- or compulsory assignment of the- debt for the purpose of applying the proceeds to- the- satisfaction of any judgment which the plaintiff is entitled to- recover.” In Knight v. Nash, 22 Minn., 453, the Sbpreme Court of Minnesota, held (quoting from the syllabus)' that: “A debt due from a municipal corporation f Oi a judgment debtor,, even though ■denied by the corporation, may be reached by a final order upon disclosure, directing the transfer of the claim, and -appointing a receiver to collect it for the benefit of the creditor. The rule -that a debt due from a municipal corporation can not be reached by process of garnishment; •has no application to an order of this character.” The •debt sought to be subjected in this case was not clue as .salary or fee;. We fail to see that the case of Whidden v. Drake, 5 N. H., 13, has any application to the case at bar. The supreme court of Connecticut, in Bray v. Town of Wallingford, 20 Conn., 416, held that a town is subject to the process of attachment in. a suit brought against its creditor. The supreme court of Ohio, in City of Newark v. Funk, 15 Ohio St., 462, decided that salaries of officers of incorporated cities, due and unpaid, might be .subjected by judgment creditors of such officers to the payment of such judgments, under the provisions of the Code of Civil Procedure. The Code provision referred to is substantially the same as the provision of the Kentucky Code in regard to the enforcement of judgments. 2 Chinn. Attachm., section 501, is cited by appellant, but the doctrine there announced does not seem to be different from that announced in the opinions, supra.

This action is assumed to be authorized by section 139, Civil Code Practice, Kentucky, which we deem it unneesary to quote. The appellant refers us to numerous decisions of this court in support of his contention which -wo have carefully examined, but deem it unnecessary to refer to in detail, :but will only refer to such as we think necessary. It was held in Field v. Chipley, 79 Ky., 260, that a contract by which the clerk of the Louisville •Chancery Court transferred and assigned to a trustee, ¡for the benefit -of ¡appellant, in consideration of a debt due him, all the fees and emoluments of his office in the-future, until the debt was paid, with conditions to pay-deputies, etc., was* void. It is against public policy that such contracts should be enforced. That the auditor has,, under the statute, the right' to look to the clerk: for taxes-on suits collected by him. The trustee will not be recognized as the person to receive them. In Johnson v. Elkins, 90 Ky., 163, (13 S. W., 448), (8 L. R. A., 552), it was held that when pension money was invested in land the* land was subject to the debts of the pensioner. This proposition has been so often and so recently decided that any further reference to the same is unnecessary-It may be remarked that it was decided by this court in Hudspeth v. Harrison, 6 Ky. Law Rep., 304, that pension-money is exempt only until it reaches the hands of the pensioner. In Rodman v. Musselman, 75 Ky., 354, it was held that salaries of officers of towns and cities may be-attached and -subjected to the payment of their debts;, but the salary of a State officer can not be attached, because the State, being a necessary party, can not be sued-It is otherwise as to a town or city. Stone v. Mayo (Ky.) 55, S. W., 700, is referred to. The opinion in this-case holds that the auditor might withhold money due-a circuit clerk on account of the clerk’s official indebtedness on account of unconstitutional pajunents made to-him as -clerk during a former term of office; the action of the auditor being based upon section 4701, Kentucky Statutes. 1't was said in the opinion that there seemed to be no reasons of public policy which would preclude the auditor from so withholding the former indebtedness of the clerk to the Commonwealth. It may be conceded that this court, in Teeter v. Williams, 42 Ky., 562, in substance decided that the plaintiff, by the aid of the chan-cellor, could attach whatever might be due his debtor for labor already performed, and he might attach whatever might become due upon an existing contract for his future labor. But neither the creditor nor chancellor --could compel him to work out his part of the contract, so as to earn the'promised reward for the exclusive use -of his creditor. In the case of Kennedy v. Aldridge, 44 Ky., 141, it appears that Robinson, by the authority of Kennedy, had drawn $50 as his compensation, as one of 1he commissioners of Garrard county, for taking in the lists of taxable property. The court below held that the ,money in Robinson’s-hands was subject to the attachment. In passing upon this question, this court said: “It is ■ contended, on the authority of the case of Divine v. Harvie, 7 T. B. Mon., 439, that the fund now in question, being the compensation payable by the State to a public officer or agent, should be protected until it reaches the .hands of the ’officer or agent. But this case differs essentially from the one referred to, in the fact that in that case the money .attempted to he appropriated to the satisfaction of the creditor’s demand remained in the treasury, whereas in this it has been paid to the authorized mgent of the person entitled to -receive it from the State. The objection that .the act authorizing the attachment and subjection of the -debtor’s choses in action does not include his debts due from the State does not, therefore, apply in, this case.” We have examined the case of Speed v. Brown, 49 Ky., 108, but the doctrine therein announced is in accord with -other decisions noticed; hemce we need not restate the same proposition.

•The appellees cite numerous Authorities' in support of their contention, which we have examined at great length. It may.be .taken as well settled that in the- case of jailers, school commissioners, and school teachers, their salaries should not be subjected to the claims, oí creditors, for •reasons given dn the several opinions. The opinions chiefly rest upon the ground of public policy,- — that the salaries are necessary to enable those officers to discharge the duties resting upon them. It is not the- contention of appellant that he can, by an ordinary attachment of gar. nishment, subject the salary of appellee, nor appropriate the whole of it to the payment of his claim. It is the contention of appellant that the proof in this case shows conclusively that $3,000 per annum is amply sufficient to support the appellee in the style in which he moves, and sufficient for an ample support commensurate with his social position; and it is argued that a court of equity has the power, and that it ought, by appropriate orders, to compel the appellee to set aside from time to time a reasonable portion of his salary for the -pajyment of plaintiff’s claim. It may be conceded that there is some conflict of authority upon this question.’ It does not seem to have ever been directly passed upon by this court. Nor do we deem it necessary to now decide as to the power of a -court of equity to make s-uch orders as are contended for by appellant. Undoubtedly, -one of the objects in allowing to officers fees' or. salaries is for their support, and to enable them to discharge the duties of office; but we are not inclined to the opinion that it was the intention of the lawmakers to limit such compensation to the actual necessaries of life, but, rather, that it was intended to allow' such officers compensation commensurate with: the official duties and responsibilities devolving upon them. And inasmuch as most men desire to accumulate something, and the public commends such desire, we think it not unreasonable that the lawmakers intended that the-officers might have like opportunities. Under our present Constitution, no officer except the Governor is allowed a greater compensation than $5,000 per annum. This being true, we think public policy demands that the courts refuse to require any officer to set apart any part of his salary for The payment of his debts. The judgment of the court below is therefore affirmed in respect to this -question.

It is, however, earnestly contended for appellant that the real estate mentioned in the petition should be held subject to plaintiff’s claim, while it is equally as earnestly contended for appellee that he has a right to assign his .salary to his wife, or to have the land in question'deeded to her, and especially so for the reason that he had received large sums of money from her in the past, and that, he desired to pay the same. That he did receive such large -sums of money from her is clearly proven in this ■case. We have already referred to the decision holding the assignment of fees to be void and against public policy. It has been repeatedly decided by this court that pension money received by a' pensioner and invested in real estate can be subjected to the demand of a.n antecedent creditor, and it would be entirely inconsistent with such a rule to hold that officers’ fees or salary1 invested in real estate should be exempt from antecedent debts, even if we were deciding — which we are not — that an officers’ fees or salary are exempt by statute from the debts of the officer. It is further suggested for appellee that, -even if the debt due his wife was barred by the statute ■of limitation, he had a right to waive that statute and pay the debt, which he undoubtedly did have, if such a debt existed, and its payment was not prejudicial to the rights of another. After a careful consideration of the law and facts, we have reached the conclusion that the relation of creditor and debtor did not exist between the appellees at the time of the purchase and conveyance of the real estate in question. It therefore follows that the conveyance to Mrs. Johnson wasi without consideration and void as to creditors, and that the court erred in refusing to Subject the same to the payment of plaintiff’s claim. The judgment to that extent is therefore reversed, and the cause remanded, with directions to adjudge the real estate .subject to plaintiff’s claim, and for proceedings', consistent herewith.