Trevino v. Cannon

1975 OK 174, 544 P.2d 513

• Court: Supreme Court of Oklahoma
• Decided: December 23, 1975
• Docket: No. 49118
• Status: Published

Opinions

LAVENDER, Justice:

August IS, 1975, Jennie Trevino, as plaintiff, brought a divorce action against her husband, Richard Trevino (petitioner or Trevino), as defendant. Summons issued but defendant not found. October 31, 1975, petition was amended to include as party defendant, Southwestern Roofing and Sheet Metal Company, the husband’s employer. That date alias summons issued as to Trevino. The district court also issued a temporary and ex-parte order directed to the employer requiring the withholding of payment of all wages and earnings of Trevino until further order of the court and advised of a show cause hearing on the order for November 19, 1975. Order served on the employer. The alias summons and order was not served on Trevino. He was not found. Trevino, advised of the order and hearing by his employer, appeared specially and by counsel at the show cause hearing. He attacked the jurisdiction of the court to issue and enforce the temporary order. District court allowed the order to stand and refused Trevino’s oral motion to quash or lack of jurisdiction.

Trevino, as petitioner, brings this original action on application for this court to assume original jurisdiction, and issue writ of prohibition against the enforcement of the temporary order. We assume original jurisdiction.

Black’s Law Dictionary, 4 ed., 1968, West Pub. Co., p. 810, defines “garnishment” as “a warning to a person in whose hands the effects of another are attached, not to pay the money or deliver the property to him, but to appear and answer the plaintiff’s suit.” We believe the temporary and ex-parte order here was a garnishment of wages. Garnishment in Oklahoma is the subject of special statutes and procedure. 12 O.S.1971, § 1171 et. seq. as amended Laws 1974, c. 71 § 1 et seq. Section 1171.1 provides:

“Money that was earned by a natural person as wages, salary, bonus or commission for personal services shall in all cases be exempt from garnishment issued before judgment of the trial court.” (Emphasis added.)

Respondent argues the order is authorized and proper under 12 O.S.1971, § 1276 for this is a divorce action. That section restrains the disposition of the property of one of the parties.

We find 12 O.S.1971, § 1276 to be in nature a general statute which could affect all property of either party in a divorce action; that earned wages is a form of property; but garnishment of wages is controlled by special statute and procedure, 12 O.S.1971, § 1171 et. seq. as amended Laws 1974, c. 71 § 1 et seq. This court in Parks v. Stith, 204 Okl. 625, 232 P.2d 614, 617 (1951) quoted from Commerce Trust Co., Kansas City, Mo. v. Morris, 157 Okl. 127, 11 P.2d 183, 184 (1932):

“A statute which is enacted for the primary purpose of dealing with a particular subject, and which prescribes the terms and conditions of that particular subject-matter, prevails over a general statute which does not refer to the particular subject-matter, but does contain language which might be broad enough to cover the subject-matter if the special statute was not in existence.”

We hold the garnishment statutes and proceedings control. It is admitted no effort was made to comply with them. Section 1171.1 prohibits pre-judgment garnishment of personal wages. Section 12 O.S. 1971, § 1276 is not controlling. The ex-parte and temporary order withholding petitioner’s wages and directed to his employer is invalid and enforcement of that order is prohibited.

Original jurisdiction assumed and writ of prohibition granted.

DAVISON, IRWIN, BARNES, SIMMS and DOOLIN, JJ., concur. HODGES, V. C. J., concurs in result. WILLIAMS, C. J., and BERRY, J., dissent.