Opinion
No. 7078.
June 4, 1952.
APPEAL FROM THE CIRCUIT COURT, NEWTON COUNTY, REX McPHERSON, J.
Herbert Douglas, of Neosho, for appellant.
Max Patten, Jr., of Joplin, for respondents.
This is a garnishment proceeding, growing out of a divorce case between appellant and respondent Homer York. Appellant here was plaintiff in the divorce case, in which she was granted a divorce from respondent York on February 4, 1946, by the trial court, with care and custody of the two children born of such marriage. Plaintiff was then awarded $5 per week for the support and maintenance of such children.
To avoid confusion, appellant here will generally be referred to as plaintiff and respondent Homer York as defendant, as those parties were known in the trial court, and garnishee-respondent Burtrum will usually be referred to as garnishee.
The facts are stipulated in lieu of a transcript. Defendant was behind in such support and maintenance for 245 weeks, or $1,225, and on July 9, 1951, an execution was issued out of the trial court, directed to the sheriff of Jasper County, Missouri. Defendant had remarried and was then the head of another family in Jasper County, Missouri.
When such garnishment was served upon garnishee, defendant was in his employ. It is admitted that, at the time such garnishment proceedings were heard by the trial court on October 8, 1951, garnishee was indebted to defendant as an employee, in the sum of $650. Appellant here, plaintiff in the divorce case, was only allowed by the trial court 10% of that sum or $65. Being dissatisfied with such allowance, she filed her motion for new trial, which was overruled, and she has appealed to this Court.
Garnishee has filed his motion for attorney fees and costs. No proof was offered on such motion, and we will not attempt to pass on it.
The sole question here is whether or not plaintiff was entitled to all of the money due to defendant from garnishee as an employee, on October 8, 1951, or only 10% thereof.
The case of Maag v. Williams, 92 Mo. App. 674, is cited as controlling. That case is not in point. It was decided in 1902, and in 1903 the Missouri Legislature amended Section 3435, RSMo 1899, under which Judge Bland, then Presiding Judge of the St. Louis Court of Appeals, wrote that case.
Section 3435, as amended in 1903, S. B. 146, Laws of Missouri for 1903, p. 199, is quite like that part of present Section 525.030 RSMo 1949, V.A.M.S., erroneously printed as Section 524.030, which section, among other things, now provides as follows:
"* * * nor shall any person be charged as garnishee for more than ten per cent of any wages due from him to a defendant in his employ for the last thirty days' service; provided, such employee is the head of a family and a resident of this state; * * *."
The statute now in force, and in force when the trial court decided this case, provides that no person shall be charged as garnishee for more than 10% of any wages due to an employee as an execution debtor for the last thirty days, if such execution debtor is now the head of a family and resides in Missouri.
The trial court manifestly decided this case under Section 525.030 RSMo 1949, V.A.M.S., and therefore held that the garnishee was only liable to pay into Court 10% of the amount then due defendant as an employee for the preceding thirty days. Its finding in that regard must be approved and its judgment affirmed.
It is so ordered.
VANDEVENTER, P. J., concurs.
McDOWELL, J., concurs in result.