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the rendition of services during a specified period, is invested with an equity which prevails over that of a creditor who afterward seeks to attach the same wages: Manly v. Bitzer, 91 Ky. 596; 34 Am. St. Rep. 242, and note; but an assignment of wages to be earned under an existing contract is void if made for the purpose of preventing their being attached under trustee process, notwithstanding the fact that the assignment was openly made and for a good consideration: Gragg v, Martin, 12 Allen, 498; 90 Am. Dec 164.
LYON v. CALLOPY.
(87 Iowa, 567.) EXEMPTION.–WAGES EARNED IN ANOTHER State, by the laws of which
they are exempt from execution, are nevertheless subject to garnish. ment in this state. The exemption laws of another state cannot be pleaded or relied on as a defense by either the garnishee or the judge ment debtor. The Chicago, Milwaukee & St. Paul Railway Company was garnished in Iowa under an attachment issued in that state against one Callopy. The indebtedness of the defendant was admitted, but was claimed to be exempt from attachment because it consisted of wages due to him for services performed in Wisconsin, by the laws of which state they were exempt from execution and attachment. The judge ment was against the garnishee, and it and the defendant appealed.
0. J. Taylor and W. H. Farnsworth, for the appellants. George T. Webster, for the appellees.
568 ROTHROCK, J. The facts upon which the appellants rely for a reversal of the judgment are as follows: The de fendant Callopy is the head of a family, and resides in the state of Wisconsin, and was employed by the garnishee rail. way company, and labored for it in that state; and the garnishee, at the time it was garnished, was indebted to Callopy in the sum of one hundred and six dollars. It is claimed that, under the laws of Wisconsin, the wages due him are exempt from the payment of his debts, and that he is entitled to claim that exemption in this state. Every question in this case was determined against the appellants in the case of Mooney v. Union Pac. Ry. Co., 60 Iowa, 346, and in Broadstreet v. Clark, 65 Iowa 670. It is said in the last-named case that
we regard it as the settled rule in this state that the exemption laws of another state or territory cannot be
pleaded or relied on as a defense by either the garnishee or judgment debtor.”
If we understand counsel for the appellants, they practically concede that the case of Mooney v. Union Pac. Ry. Co., 60 Iowa, 316, stands squarely in the way of a reversal of this case; but they seem to think that the attention of the court was not called in that case to the proposition that the debt was exempt by the laws of Nebraska. This is a mistake, and the opinion in the case so shows. It is useless to cite cases which hold that by some sort of comity the exemptions allowed to residents of this state should be extended to residents of sister states. Exemption laws are purely statutory, and our code, section 3072, expressly provides that “if the debtor is a resident of this state, and is the head of a family,” he may hold certain property and debts as exempt. This provision as plainly requires 569 that there must be residence in this state as that the debtor must be the head of a family.
There is no other question in this case which demands consideration, and the judgment of the district court is affirmed.
ATTACHMENT.-GARNISHMENT OF WAGES EXEMPT IN ANOTHER State: See the note to Singer Mfg. Co. v. Fleming, 42 Am. St. Rep. 623, where the cases are collected.
STATE V. VAN BEEK.
(87 Iowa, 569.) JURISDICTION-PRACTICE. -A Court Will RECOGNIZE WANT OF JURISDIO
Tion even if no objection is made, for, if the court is without jurisdic.
tion, it is powerless to act in the case. EQUITY JURISDICTION.—THE TITLE TO AN OFFICE cannot be tried in equity. PUBLIC OFFICE.-The Title To A Public Office may be tried in proceed.
ings against a person claiming to be entitled to such office, though he has not yet taken possession of it, if the statute declares that, when several persons claim to be entitled to the same office or franchise, a petition inay be filed against all, or any portion of them, in order to
try their respective rights thereto. PUBLIC OFFICE. —AN ALIEN IS NOT ENTITLED to hold a public office, though
there is no constitutional or statutory provision expressly excluding
him from such right. PUBLIC OFFICE.-AN ALIEN ELECTED TO A PUBLIC OFFICE is, on subse.
quently, and before the time when he is required to qualify for the otice, becoming a naturalized citizen, entitled to hold such office and discharge the duties thereoi, if there is no constitutional or statutory
provision expressly requiring him to be qualified therefor at the time
of his election. PUBLIC OFFICE.—THE RIGHT TO A PUBLIC OFFICE IS NOT FORFEITED by the
failure to qualify at the time designated in the statute, if such qualifi. cation was prevented by an injunction or other proceeding by which the right or power to qualify was temporarily suspended. M. A. McCoid, Palmer & McCoid, and Phillips & Day, for the appellants.
T. A. Bereman, W. T. Withrow, and R. Ambler & Son, for the appellees.
572 GIVEN, J. 1. The first question presented is that of jurisdiction. The appellees contend that neither the district court nor this court has jurisdiction to hear and determine the cause as presented in the pleadings. A determination of this question requires that we state at some length the allegations of the plaintiff's bill. On January 4, 1892, that being the first Monday in said month, the plaintiff filed a bill, stating that the relator, Gillis, was a resident citizen and elector of the county; that he voted at the general election in 1891 573 for the relator Perine, and is interested in the result of this suit; that the county attorney was asked to bring this action, and failed and refused to do so, whereupon it is brought by a private individual. The petition alleges, in substance, as follows: That the relator Perine had held the office of sheriff of Henry county for the preceding two years and was then in possession thereof, and entitled to hold the same until a successor "legally eligible" was duly elected and qualified; that he and the appellee Van Beek were opposing candidates for said office at the general election in 1891; that Van Beek received a majority of all the votes cast; that a certificate of election had been issued to him, and that he was about to present his bond to the defendant board for approval, and to qualify as such sheriff, and demand said office of the relator Perine; that said George Van Beek was not a citizen of the state or of the United States, for ihe reason that he was born in the kingdom of Holland, and had never been naturalized under the laws of the United States, and was therefore “not eligible to the office at the time of his election"; that he fraudulently concealed said facts, and represented himself to be a citizen of the United States, and an elector of this state at the time of the election, of the canvass of the vote, the issuing of the certificate, and until after the expiration of the time for con
test; that the relator Perine received the highest number of votes cast for any candidate eligible to hold said office, but the board of canvassers, not knowing that said Van Beek was ineligible, declared him elected. The prayer is that the right to said office be determined; that Jacob Perine be adjudged legally in possession of the same, and entitled to hold the same until his successor is elected and qualified; that George Van Beek be adjudged ineligible thereto; that the action declaring his election be canceled and declared void, and that Jacob Perine be declared elected, and entitled to qualify 574 and to exercise said office after qualification; that the board of supervisors be commanded to issue a cere tificate of election to the relator Perine, and that the said board and the auditor be commanded to qualify and swear him in as such officer; that temporary injunction issue restraining the chairman of said board and said auditor from proceeding to qualify said Van Beek, and restraining Van Beek from qualifying and froin further claiming said office until this cause is determined.
On presentation of said petition to Hon. W. I. Babb, judge, in chambers, he ordered that a temporary writ of injunction issue restraining Van Beek from exercising any of the duties and functions of said office “until information in quo war. ranto can be heard, upon the relators James R. Gillis and Jacob Perine filing a bond conditioned as by law.” Bond being filed, the clerk, on said fourth day of January, issued a temporary writ of injunction in accordance with said order. On the same day the defendants appeared, and filed a motion to dissolve the injunction on the ground that the same was issued without authority of law, which motion was then submitted and overruled, and the court ordered the cause set down for hearing on the next day at 9 o'clock A. M. By this motion the defendants questioned the jurisdiction of the court. The overruling of the motion was favorable to the appellant, and, as the defendants have not appealed, he insists that the question of jurisdiction is not before this court. This court has uniformly held that it will recognize want of jurisdiction, even if no objection be made: St. Joseph Mfg. Co. v. Harrington, 53 Iowa, 380; Groves v. Richmond, 53 Iowa, 570. Whenever a want of jurisdiction is suggested, by our own examination of the case or otherwise, it is the duty of the court to consider it, for if the court is without jurisdiotion it is powerless to act in the case.
575 2. The appellee contends, and correctly so, that an action in equity aided by injunction will not lie to try title to an office: Cochran v. McCleary, 22 Iowa, 75; District Township v. Barrett, 47 Iowa, 110; State v. Simpkins, 77 Iowa, 676. The appellee also contends that the only action authorized by chapter 6, title 20, of the code, so far as it relates to public offices, is against one holding or exercising such office, and that, as he is not holding or exercising the office in question, no action will lie against him under said chapter. He maintains that this is an action to prevent him from taking and exercising the office, and that no such action is provided for by statute or common law, and therefore the court is without jurisdiction. Said chapter 6, in addition to the actions against persons doing the things specified in the first section, provides, in section 3352, as follows: “When several persons claim to be entitled to the same office or franchise a petition may be filed against all or any portion thereof, in order to try their respective rights thereto, in the manner provided by this chapter.” Herein the right to proceed against one claiming to be entitled to an office or franchise is clearly given. Here we have two persons claiming to be entitled to the same oflice, and by this section authority is given to try their respective rights thereto. We are in no doubt but that the court has jurisdiction over this cause.
3. On the fifth day of January, 1892, the defendant filed a demurrer to the petition. He also filed a motion for permission to be naturalized, stating that he was born in Holland in 1834, emigrated with his parents to the United States in 1847, and has resided therein ever since, and for twentyseven years in Henry county; that in 1861 he volunteered in the United States military service in the war of the rebellion, 576 and was honorably discharged therefrom in 1866. The record shows that, upon proof being presented, he was duly naturalized on said fifth day of January, and that said demu rer was overruled. On the sixth day of January the defendant Van Beek answered, admitting that votes were cast at the general election as alleged, that he is a native of Holland, and that he was at the time of the election unnaturalized. He alleged that his father was naturalized in 1855; that he had been advised that his father had been naturalized before he (the defendant) attained his majority, and never until the commencement of this proceeding had reason to doubt that he was a citizen of the United States;