Karnes v. Dovey

Harrison, C. J. It appears herein that on and prior to August 19, 1892, the defendants in error were, as partners, engaged in general mercantile business in the city of Plattsmoutli, this state, and the plaintiff in error on the date mentioned was indebted to them on account; that said account was then sold and assigned to a third party, who in a court of the state of Iowa instituted an action thereon in Avliich a Avrit of attachment was procured to issue, accompanied by a summons in garnishment against, and Avhicli was seiwed on, the Chicago, Burlington & Quincy Railroad Company, owner and operator as assignee of the Burlington & Missouri RiArer Railroad Company in Nebiaska, of which last mentioned company the plaintiff in error was an employó; that as a result of said action in the loAva court the wages of the plaintiff in error, which he asserts herein Avere by the laAvs of this state exempted from forced application to the payment of his indebtedness of which aauis the account sold by defendants in error, AArere taken and appropriated in payment of said account. The present action was commenced in the district court of Cass county to recoAmr of defendants the damages alleged to huye been suffered by plaintiff by reason of the alleged assignment by defendants of the account and the subsequent proceedings in the Ioaaui court and the seizure and application therein of the exempt AAmges of the plaintiff. Issues Avere joined, and in a trial the defendants AA'cre successful and the plaintiff presents the cause to this court for revieAV. [727] It is argued that the trial court erred in refusing to give in charge to the jury instruction numbered 2, requested for plaintiff, in terms as follows: “The court instructs the jury that if they believe from the evidence that plaintiff is the head of a family and a resident of this state, and that the money attached by the Iowa court was earned within the period of sixty days prior thereto, then and in that case your verdict should be for the plaintiff, and in this connection you are instructed that under the laws of Nebraska a creditor cannot lawfully assign a claim against a resident debtor of Nebraska to a person in another state and have exempt wages taken by such persons in the other state.” And in this connection it is also urged that it was error of the court to give paragraph numbered 3 of its charge to the jury. The first would, if it laid been read in connection with the other portions of the charge, have informed the jury, as is claimed in argument, that if an account against certain parties designated in our statutes was by the owner thereof assigned and by the assignee or other person to whom it might be further assigned taken to another state and suit f hereon instituted in which the wages earned within the sixty days or time fixed by Iuav were taken and applied in satisfaction of the account, an action would lie and could be successfully maintained against the original owner and assignor, and the verdict, regardless of the appearance of other fact or facts in evidence, should in this case be against the defendants. Paragraph numbered 3 given, and which, as we have stated, is attacked in this connection, was in effect the same as that numbered 2 requested for plaintiff, except in that it informed the jury if it further appeared in evidence that the account was sold and assigned without an\ intent or purpose on the part of the assignors of evading the exemption laws of the state the verdict should be for the defendants. It is provided in section 531 a of the ('ode of Civil Procedure: “The wages of laborers, mechanics, and clerks who are heads of fam [728] ilies, in the hands of those by whom snch laborers, mechanics, or clerks may be employed, both before and after such wages shall be due, shall be exempt from the operation of attachment, execution, and garnishee process; Provided, That not more than sixty days’ wages shall be exempt.” And on the same subject, in section 531c: “That it be, and is hereby declared, unlawful for any .creditor of, or other holder of any evidence of debt, book account, or claim of any name or nature against any laborer, servant, clerk, or other employé of any corporation, firm, or individual in this state, for the purpose below stated, to sell, assign, transfer, or by any means dispose of any such claim, book account,, bill, or debt of any name or nature whatever, to any person or persons, firm, corporation, or institution, or to institute in this state or elsewhere, or prosecute any suit or action for any such claim or debt against any such laborer, servant, clerk, or employé by any process seeking to seize, attach, or garnish the wages of such person or persons earned within sixty days prior to the commencement of such proceeding, for the purpose of avoiding the effect of the laws of the state of Nebraska concerning exemptions.” In section 531e: “In any . proceeding, civil or criminal, growing out of a breach of sections one or two of this act, proof of the institution of a suit, or service of garnishment summons by any persons, firm, or individual, in any court of any state or territory other than this state or in this state, to seize, by process of garnishment or otherwise, any of the wages of such persons as defined' in section one of this act, shall be deemed prima facie evidence of an evasion of the laws of the state of Nebraska and a breach of the provisions of this act on the part of the creditor or resident in Nebraska causing the same to be done.” Also, in 531/: “Any persons, firm, company, corporation, or business institution guilty of a violation of sections one or two of this act shall be liable to the party injured through such violation of this act, for the amount of the debt sold, assigned, transferred, garnished, [729] or sued upon, with all costs and expenses and a reasonable attorney’s fee, to be recovered in any court of competent jurisdiction in this state.” The object of these and other provisions of statute on the subject, it is evident, is to exempt absolutely, if possible, the wages of the persons designated, to the extent or amount stated, and they should be construed in such manner as to render them effective of the expressed purpose. If we give the language used its ordinary and precise import, always bearing in mind the object sought to be accomplished by the law-makers who framed and enacted the portions of our law now under consideration, we think it is clear that if it appears in evidence that an account or claim has been assigned and an action instituted thereon by the assignee in a state other than this in which the exempt wages of the debtor have been seized and appropriated to the payment of the debt, and other facts have been shown from which the fair inference or conclusion might be drawn that the assignment by the original owner of the claim had been wholly without any intention or purpose of avoiding or evading the law of exemptions, the questions are of fact and to be submitted to the jury under proper instructions, and in this view of the matter the instruction requested and refused was erroneous, in that it ignored the proposition of the good faith of the assignors of the account at the time of such transfer; and the one given was correct, in that it noticed the proposition which was omitted from the requested instruction. It is an established rule that alleged errors in regard to instructions given or refused must be specifically and separately assigned in both motion for a new trial and the petition in error; that if they be grouped in assignment in either pleading the errors indicated will be examined no further if it be ascertained that one of the errors of the group alleged is without force. (See Graham v. Frazier, 49 Neb. 90; Johnston v. Milwaukee & Wyoming Investment Co., 49 Neb. 68; Denise v. City of [730] Omaha, 49 Neb. 750.) In this case errors were assigned in group in the motion for new tidal in relation to several instructions given, and in the same manner in both motion for a new trial and the petition in error of instructions requested for plaintiff in error and refused, and having determined that one given was Avithout error and of one refused the action was proper, we need consider no further alleged errors as to either group. There are no other objections presented in argument, and it folloAvs that the judgment of the district court must be Affirmed.