Burke v. Finley

Opinion by Strang, C.: On September 15, 1888, the plaintiff, W. D. Burke, leased certain premises of the defendant, J. K. Finley, situate in Emporia, Lyon county, Kansas. Said lease contained a waiver of the benefit of the exemption laws of Kansas. Afterward, rent became due on said lease, and suit was brought against the plaintiff therefor, and on the 7th of October, 1889, a judgment was had against him for quite a large sum of money. November 23, thereafter, execution was issued thereon, and garnishment proceedings were run against the A. T. & S. F. Rld. Co. Said company answered that it was indebted to said Burke in the sum of $54. Thereafter, on December 30, 1889, the defendant, Burke, filed in said cause his motion to discharge said garnishment proceedings, and supported the same by an affidavit showing that he was a citizen of Kansas and had been for a year or more; that he had a family consisting of a wife and three small children, who were wholly dependent upon his labor and earnings for support; and that the money garnished in the hands of said company was wholly due for personal services rendered by him to said company between September 26, 1889, and October 27,1889; and that all of the said sum was needed for the support of his said family. There was no evidence to rebut this showing in any way, and the only question decided by the court below was whether the defendant, Burke, had waived the exemption guaranteed to him and his family under ¶ 4589, General Statutes of 1889, by reason of the exemption clause in said lease. The court below re [427] fused to discharge said garnishment proceedings, thereby. holding that Burke had waived the exemption guaranteed by said ¶4589, General Statutes of 1889. The only question for this court to decide is, whether the trial court erred in refusing to discharge said garnishment proceedings. We do not think the waiver -of the exemption laws of Kansas, contained in the lease upon which the judgment against Burke was obtained, operates as a waiver of the exemption of wages provided in ¶ 4589, General Statutes of 1889. The waiver contained in the lease aforesaid must be limited to the property rights of the debtor under the general exemption laws of the state. In creating the exemption under ¶ 4589, the legislature did not intend to create a new and additional personal privilege in the debtor, that he might claim or waive at his option, but to create an exemption in the interest and for the benefit of the family of the debtor. This exemption is not given to every debtor. It is limited to those debtors who have families dependent upon their earnings for support. Being created for the benefit of the debtor’s family, he cannot waive it. It follows therefore that this case should be reversed and sent back for further proceedings. By the Court: It is so ordered. All the Justices concurring.