Maag v. Williams

BLAND, P. J. It was found by the trial court that John Maag was legally bound to support his child by his first marriage and for this re’ason was the head of a family within the meaning of sections 3159 and 3162, Revised Statutes 1899. On the appeal it is assumed by appellant and admitted by respondent, in their respective briefs, that John Maag was the head of a family at the date of the service of the process of garnishment. Whether or not John Maag was the head of a family within the meaning of the sections of the statutes, supra, is not open for discussion on this appeal and we will assume for the purpose of the decision of the case that he was the head of a family. Supposing, then, Maag to have been the head of a family when the process of garnishment was served on appellant, was his' weekly wages exempt from execution by section 3162, supra? The learned trial judge, following Spengler v. Kaufman & Wilkinson, 46 Mo. App. 644, held that Maag was not entitled to invoke the protection of said section against the judgment for the support of his minor child. In the Spengler case the wife had obtained a judgment against her husband for support and defendants were summoned as garnishees. The above statute of exemptions was interposed as a defense. On appeal to this court is was held that Spengler could not claim the benefit of the statute to defeat the collection of his wife’s judgment. TIis wife was the only other member of Spengler’s family and there is some apparent justice in the ruling, but suppose Spengler had had minor children dependent upon his wages for their daily bread; the case would present altogether a different aspect and the apparent justice of the decision would be transformed into a palpable injustice.- The Spengler decision en-grafts upon the statutes of exemptions an exception to the protection they were designed to secure to every head of a family, and is judicial legislation, and is opposed to the decision of the Supreme Court in the case of Biffle v. Pullam, 114 Mo. 50, wherein it was held that, “A homestead was exempt [681] from the levy of an ordinary execution issued on a judgment for alimony rendered in favor of the wife in a divorce suit in the same manner and to the same extent as in the case of execution on any other judgment.” The legal and moral obligation of Maag to support his child was not taken away by the award of its custody to its inother, but the judgment for its support, rendered in the divorce suit in favor of the mother, is like any other judgment; it established a legal liability, to accrue from month to month, and awarded execution for its collection, from time to time as the debt accrued. The statute of exemptions makes no exceptions whatever in favor of such a judgment and ita collection on execution must be enforced, if at all, like any other judgment. Biffle v. Pullam, supra. Respondent cites State v. Parsons, 115 N. C. 730, as holding that a judgment in favor of the mother is not, in form, a debt.. The Parsons ease was a proceeding under the bastardy law of North Carolina. The allowance for the support of the bastard child was made payable to the mother. The court said it might have been made payable to the overseer of the poor as the agent of the State. The State had a direct interest in enforcing the payment and it was held that the State would not abdicate its right to enforce payment for the reason that the money was made payable to the mother instead of to the overseer of the poor. The State has no interest in the enforcement of the judgment in the case at bar. It is not a party to the record and the case has no analogy whatever to the Parsons case. On the admission both by his brief and on the oral argument of respondent’s counsel that John Maag was the head of a family within the meaning of the exemption statutes, we reverse the judgment. Barclay and Goode, J-J., concur.