Brown v. Hebard

Dixon, C. J. Section 94 of chapter 134, R. S., provides tbat in proceedings supplementary to execution, tbe judge may order any property of tbe judgment debtor, not exempt from execution, in tbe bands either of himself or any other person, or due to tbe judgment debtor, to be applied toward tbe satisfaction of tbe judgment, except tbat tbe earnings of tbe debt- or for his personal services at any time within sixty days next preceding tbe order, cannot be so applied when it is made to appear, by tbe debtor’s affidavit or otherwise, tbat such earnings are necessary for tbe use of a family supported wholly or in part by bis labor. At tbe time this statute was enacted, tbe earnings of tbe debtor were not exempt from attachment, garnishee process, or seizure and sale upon execution. Subsequently tbe act of 1858 (chapter 148, R. S.,p. 799) was passed, which, as amended by chapter 280, Laws of 1861, declares tbat [330] the earnings of all married persons, or persons who have to provide for the entire support of a family in this state, for sixty days next preceding the issuing of any process from any court of record or justice of the peace against them, shall be exempt from levy, seizure or sale upon such process ; and the same shall not be liable to be garnisheed, or seized by attachment, or levied upon by execution, or sold on any final process issued from any court of his state. This last act worked a repeal or modification of section 94, so far as it is inconsistent with that section. By extending the exemption from execution to the earnings of a certain class of debtors for the period of sixty clays, absolutely, it rendered the latter clause of section 94, as to the earnings to be excepted &c., wholly inapplicable to that class of debtors. Debtors of the new class become absolutely entitled to the exemption of their earnings for the period of sixty days under the first clause of the section, by which the power of the judge is limited to the application of the property of the judgment debtor, not exempt from execution. A question is made as to the application of the act of 1858. I have no doubt it includes all persons who support themselves by the labor of their hands, without regard to the grade of such labor or the degree of skill and experience required in its performance. I think the act is applicable to the case of the present defendant, who is shown to be a debtor of the class provided for by it. The question then is as to the meaning of the word “ earnings,” as-found in the act of 1858, without the qualifying words contained in section 94. It is not easy, perhaps, to determine the precise application of this word as used in the statute. I think a correct definition to be, the gams of the debtor derived from bis services or labor without the aid of capital. If the debtor has no capital and no credit contributing to increase his profits, except the credit arising from the labor or service in which he is presently engaged and out of the proceeds of which his obligations on account of such labor or service are to be [331] discharged, then I think Ms net receipts or gains from such labor or service may fairly be accounted “ earnings.”' If, for example, the man whose business it is to dig a well, sink a mine, erect a house, run a raft of lumber or a ferry-boat, or to perform any of the numerous kinds of work in which the assistance of others is necessary, employs others, as he must do, to assist him, and who are to be paid as he himself is paid, out of the proceeds of the work, it seems to me that what remains after the others are paid must be regarded as his “ earnings.” We all know that there are many men who have a peculiar skill and adaptation to these different kinds of labor — who, from long application and experience, are qualified to assume the management and control of them and of others engaged in them, and when they do so, under the circumstances stated, why may not their gains, increased perhaps beyond the gains of others who have no skill and experience, be said to be the result of their personal services. I must say that I think they are the 1 ‘ earnings ” — the fruits of the proper skill, experience and industry — of the persons to whom they belong. These observations are applicable to and dispose of this case. The net proceeds of the defendant’s services as flour inspector, after the payment of his employees, were his “ earnings,” and as such were exempt within the period fixed by the statute. By the Court. — The order of the circuit court is affirmed. Downer, J, dissents.