« AnteriorContinuar »
2. The first question certified, in substance, is whether one can assign his future earnings so as to vest the same in bis assignee, free from the claims of attaching creditors; and, if so, can a valid assignment be made of wages in the absence of a contract under which the wages are to be earned ? A great many cases have been decided touching this question. We shall refer to a few of them to show that the conclusion we have reached finds abundant support.
It has been held that a schoolteacher who was indebted to another had the legal right to make an assignment of his wages to accrue under his contract with the district, and when he drew an order on the district treasurer in favor of his creditor, which was accepted by the proper officers of the district, conditioned on his completing his contract, and the creditor authorized the district secretary to draw the money for him, which he did before he was garnished, that the fund was not subject to garnishment by creditors of the teacher: Johnson v. Pace, 79 Ill. 143; Ruple v. Bindley, 91 Pa. St. 296. So it has often been held that when one assigns wages to be earned under an engagement then existing, and when he was actually at work thereunder, at a fixed price, payable at a certain time, though no contract of employment existed for any stipulated time, yet such an assignment, if accepted, would be good as against a garnishment by creditors of the assignor: Taylor v. Lynch, 5 Gray, 49; Lannan v. Smith, 7 Gray, 150; Hartley v. Tapley, 2 Gray, 566; Weed v. Jewett, 2 Met. 608; 37 Am. Dec. 115; Brackett v. Blake, 7 Met. 335; 41 Am. Dec. 442; Emery v. Lawrence, 8 Cush. 152; Thayer v. Kelley, 28 Vt. 19; 65 Am. Dec. 220; Augur v. New York etc. Packing Co., 39 Conn. 536; Garland v. Harrington, 51 N. H. 409; Wallace v. Heywood Chair Co., 16 Gray, 209; 3 Pomeroy's Equity Jurisprudence, sec. 1286; Drake on Attachments, sec. 612; 1 Am. & Eng. Ency. 448 of Law, 828. And it has been held that such an assignment is good in the absence of an express contract fixing a time of employment, as where the assignor, when he executed the assignment, was employed at piece work or by the day: Lannan v. Smith, 7 Gray, 150; Kane v. Clough, 36 Mich. 436; 24 Am. Rep. 599.
It is equally well settled that an assignment of wages expected to be earned in the future, and not based upon an existing contract, engagement, or employment, is void: Mulhall v. Quinn, 1 Gray, 105; 61 Am. Dec. 414; Jermyn v. Moffitt, 75 Pa. St. 402; Ruple v. Bindley, 91 Pa. St. 296; Morrill v. Noyes, 56 Me. 458; 96 Am. Dec. 486; Runnells v. Bosquet, 60 N. H. 38; Lehigh Valley R. R. Co. v. Woodring, 116 Pa. St. 513. The distinction between the two classes of cases is this: In the one an attempt is made to assign something which exists in expectancy only. In such a case it is apparent that there is nothing to assign. The expectancy may never become a reality. The earning of wages or the accumulation of property in such a case will depend on the ability of the assignor to procure employment in the future. There is no present employment which may reasonably be expected to result in the earning of wages. In the other class of cases one has entered into a contract or upon an employment whereby, in the ordinary course of events, wages will be earned, or property acquired as the direct result of the contract, employment, or engagement. The true rule is that an assignment of wages to be earned is good if accepted, and if, at the time it is made, there is an existing engagement or employment by virtue of which wages are being, and in future may reasonably be expected to be, earned, even though there is no contract or fixed time of employment. And in the case of a contract for work or labor an assignment of the fruits of it may be good, though the labor to be performed under it has not yet been commenced.
449 The first and third questions, then, must be answered in the affirmative; and, as we hold that the existence of a contract is not necessary if the assignment is based on wages to be earned in an existing employment, we need not consider the second question.
ASSIGNMENT OF FUTURE EARNINGS-VALIDITY OF.- Equity will uphold an assignment of wages expected to be earned in the future but not under an existing employment or contract. Edwards v. Peterson, 80 Me. 367; 6 Am. St. Rep. 207. See, also, the notes to the following cases: Harris County v. Campbell, 2 Am. St. Rep. 473; Field v. Mayor, 57 Am. Dec. 440; Brackelt v. Blake, 41 Am. Dec. 443; Mulhall v. Quinn, 61 Am. Dec. 417; Skipper v. Stokes, 94 Am. Dec. 650; and Manly v. Bitzer, 34 Am. St. Rep. 245.
ASSIGNMENT OF FUTURE EARNINGS_VALIDITY AS AGAINST ATTACHING CREDITOR.-An assignment of a debt to become due on the completion of a job of work, or at the expiration of a terın of service is valid, and a garnish. ment thereafter made is ineffectual: Payne v. Mayor, 4 Ala. 333; 37 Am. Dec. 744. A debtor may assign his future earnings to one creditor, and if the employer agrees to pay the assignee he cannot afterward be charged as the trustee of the assignor, in a process sued out by another creditor: Weed v. Jewell, 2 Met. 608; 37 Am. Dec. 115, and note. The transferee for value of wages to be earned in the future under an existing contract, for
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 nade for the purpose of preventing their being attached under trusteo, process, notwithstanding the fact that the assignment was openly mado and for a good consideration; Gragg v. Martin, 12 Allen, 499; 90 Am. Dec 164.
LYON v. CALLOPY.
(87 Iowa, 567.) EXEMPTION.-WAQES 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 garnishes 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 defend. ant 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 appellante. 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 defendant 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 Par. Ry. Co., 60 Iowa, 346, 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 al. lowed to residents of this state should be extended to resi. dents 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 669 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 ANOTIIER 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. provision expressly requiring him to be qualified therefor at the time
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 otive, becoming a naturalized citizen, entitled to hold such office and discharge the duties thereos, if there is no constitutional or statutory
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.
672 GIVEN, J. 1. The first question presented is that of jurisdiction. The appellees contend that neither the district court nor this court bas 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 the 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