
    PROCEEDINGS IN AID OF EXECUTION.
    [Franklin (2d) Circuit Court,
    January Term, 1902.]
    Wilson, Sullivan and Summers, JJ.
    Kouns v. Reiniger.
    Proceedings in Aid oe Execution Reach Oney Credits Existing at Time oe Service oe Process.
    Proceedings in aid of execution before justices of the peace, under Sec. 6680-2 Rev. Stat. et seq., reach only to those debts that, whether due or not, are owing at the time of the service of process on the debtor of the judgment debtor and not to those subsequently arising and subsisting at the time of the hearing.
    E. L. Pease, for plaintiff, cited:
    The contract in question being a contract for one year, with bimonthly payments of wages, is an entire contract, is not apportionable, and hence no liability could have arisen until the bi-monthly period of ^service had been fully completed, to-wit: at the expiration of the thirty days of each month. Larkin v. Hicksher, 16 Atl. Rep. 708 [51 N. J. L. 138]; Dexter v. Phillips, 121 Mass. 178 [23 Am. Rep. 261] ; 14 Bnc. Law (1 ed.) 776; Master and Servant; Mechem Agency, Sec. 635; McClurg v. Price, 59 Pa. St. 420, 423 [98 Am. Dec. 356]; Allen v. Curies, 6 Ohio St. 505; Wiggin v. SWett, 47 Mass. (6 Mete.) 194, 200 [39 Am. Dec. 716]; Larkin v. Buck, 11 Ohio St. 561; Goldsmith v. Hand, 26 Ohio St. 101,106.
    Rights of the garnisher do not rise above or extend beyond those of the debtor. Rood Attachment, Sec. 379, p. 480n; Drake Attachment, Sec. 458.
    The phrase in the statute “ whether then due or not ” has reference to a liability absolute at the time of service, but the time for the payment of which had not yet arrived. The liability must be such that lapse of time only is necessary to give a right of action; if anything further must be done by the one party there is no absolute, but only a contingent, liability. Foster v. Singer, 34 N. W. Rep. 395 [69 Wis. 392; 2 Am. St. Rep. 745]; Bishop v. Young, 17 Wis. 46; Smith v. Davis, 1 Wis. 447 [60 Am. Dec. 390]; Huntley v. Stone, 4 Wis. 91; Gordon v. Brewster, 7 Wis. 355; Lee v. Merrick, 8 Wis. 229; Jennings v. Lyons, 39 Wis. 553 [20 Am. Rep. 57]; Dieienbeck v. Stark, 14 N. W. Rep. 621 [56 Wis. 462; 43 Am. Rep. 719]; Koplitz v. Powell, 14 N. W. Rep. 813 [56 Wis. 671]; Hancock v. Colyer, 99 Mass. 187 [96 Am. Dec. 730]; Knight v. Bowley, 117 Mass. 551; Wood v. Partridge, 11 Mass-488; Wyman v. Hichborn, 60 Mass. (6 Cush.) 264; Edwards v. Roepke, 43 N. W. Rep. 554 [74 Wis. 575]; Bishop v.. Young, 17 Wis. 46; Thomas v. Gibbons, 15 N. W. Rep. 593 [61 la. 50, 51]; Hadley v. Peabody, 79 Mass. (13 Gray) 200; Phelps v. Railway Co., 28 Kan. 165; Drake Attachments, Sec. 458; Martin v. Gayle, 13 Re. 54 [2 Disn. 86]; Newark v. Funk, 15 Ohio St. 462, 463, 464; Ohio Auxiliary Fire Alarm Co. v. Heisley, 4 Circ. Dec. 691 (7 R. 483); Secs. 6500, 6503 Rev. Stat.; Rood Attachment, Secs. 63, 11&.
    Charles F. Prior, for defendant, cited:
    Upon the question of the assignment of wages. Gamble v. Car-lisle, 6 Dec. 48 (3 N. P. 279); Poole v. Carhart, 32 N. W. Rep. 16 (71 la,. 37); Bishop v. Garcia, 14 Abb. Pr. 69 ; Noble v. Oil Co., 79 Pa. St. 354 [21 Am. Rep. 66]; Heermane v. Ellsworth, 64 N. Y. 159 ; Silver-stein v. Greisheimer, 44 Bull. 191, 192.
    Superior courts will disregard any minor defects in the bill of particulars or proceedings which do not affect the substantial rights of the adverse party. Section 5303 Rev. Stat.; Swan Treatise (18 ed.) 254; Bierce v. Pierce, 15 Ohio 530, 538.
    Heard on Error.
   SUMMERS, J.

The question raised is whether under the act “To provide for proceedings in aid of execution before justices of the peace,” passed April 27, 1896; 92 O. L. 375; Sec. 6680-2 Rev. Stat. et seq., money not owing to the judgment debtor at the time of the service of the order, but owing to him at the time the order to pay is made, may be ordered paid to the judgment creditor.

The defendant in error recovered a judgment against the plaintiff in error before a justice of the peace, and subsequently instituted before him proceedings in aid of execution. The person named in the affidavit was ordered to appear by an order that was served on him on February 27. At the hearing on March 8 it appeared that the judgment debtor was employed by the person named in the order by the year at a salary of $750, payable in bi-monthly installments of $31.25 each on the fifteenth and thirtieth of each month and on the fifteenth and twenty-eighth when the twenty-eighth was the last working day of the month, and that the judgment debtor had been paid in full to February 15, and that the installment for the last half of that month would have been paid to him on February 28, and that it was not exempt from execution or attachment. The justice ordered the installment paid to the judgment creditor. The judgment debtor prosecuted error to the court of common pleas, where the order was affirmed and error is now prosecuted to this court.

It is well settled that the judgment debtor’s right to recover the installment payable February 28 was conditioned upon his remaining until that time in the service of his employer. Larkin v. Buck, 11 Ohio St. 561; Mechem on Agency, Sec. 635.

The question then recurs whether proceedings in aid of execution reach only debts subsisting at the time of the service of process upon the debtor of the judgment debtor or extend to such as may be in existence at the time of the hearing.

Section 1 of the act, 92 O. L. 375, provides that when a judgment creditor makes oath that any person “ is liable to the judgment debtor in any sum of money, whether then due or not ” the justice shall order such person to appear. Section 2 provides that the exact time of service shall be stated in the return, and that the person served, “ from the time of the service thereof, shall be liable to the judgment creditor for whatever he was then liable for to the judgment debtor.” Section 3 provides that when the person appear he shall be examined “ touching the-money for which he is liable as aforesaid.”

It is apparent from these sections that the examination is limited to the liability subsisting at the time of the service. The exact lime of the service is to be stated and the person served shall be liable for whatever he was then liable for. The words in Sec. 1, “whether then due or not,” relate to the time of payment, and indicate that the word “liable” was not used in its broadest sense and so as to include a contingent obligation, for in that event they would have been unnecessary. The words of the statute are, “ liable to the judgment debtor in any sum of money, whether then due or not.” Liable is used in the sense of indebted.

A sum payable in any event, though not yet due, is a debt — debitum in presentí, solvendum in futuro, but a sum payable on a contingency is not a debt and does not become such until the contingency has happened. People v. Arguello, 37 Cal. 524.

In United States v. Bank, 31 U. S. (6 Pet.) 29, 36, Mr. Justice Story says the word “due” is used in different senses:

“It is sometimes used to express the mere state of indebtment, and then is equivalent to owed, or owing; and it is sometimes used to express the fact that the debt has become payable. Thus, in the latter sense, a bill or note is often said to be due, when the time for payment of it has arrived. In the former sense, a debt is often said to be due from a person when he is the party owing it, or primarily bound to pay, whether the time of payment has or has not arrived.

See also Scudder v. Coryell, 10 N. J. L. 340, 345.

The word “due” is used in the statute in the sense of payable. This interpretation of the act is in accord with the decisions where similar provisions have been under consideration.

In Thomas v. Gibbons, 15 N. W. Rep. 593 [61 Ia. 50], the wages of a brakeman were garnisheed; the answer showed that there was due him at the time of the garnishment $9.70, and that the garnishee owed him no other debt at that time due or to become due, but that he continued in the employ of the garnishee and earned other wages after the garnishment, to the amount of. $144. The court rendered judgment for only $9.70, and the plaintiff appealed.

Adams, J., says:

“The question presented arises upon the construction of Sec. 2975 of the code. The garnishee is required to pay any debt due or thereafter to become due. As to the meaning of the words ‘ debt due ’ there can be no doubt. The question is as to the meaning of the words, ‘debt thereafter to become due.’ The plaintiff contends that the word ‘-debt ’ as used is not restricted to a debt then existing, but may also mean any debt which may thereafter originate. But a debt which has yet to originate cannot properly, we think, be said to be a debt which is to become due. Of such a debt nothing can properly be predicated. The words ‘ to become due ’ are set out against the word ‘ due,’ and like it are used to describe the word ‘ debt,’ which must mean a subsisting debt.” The judgment was affirmed.

Section 3719 Rev. Stat. of Wisconsin is very similar to the statute under consideration. It reads:

“The garnishee from the time of the service of summons shall stand liable to the plaintiff to the amount of the personal property, money, ■credits and effects in his hands belonging to the defendant, and the amount of his own indebtedness to the defendant then due, or to become due, and not by law exempt from executions.”

In Foster v. Singer, 69 Wis. 392, where this section was considered it is held that “A specified salary per month, to be paid to an employe at the end of each month, is not liable to process of garnishment served before the end of the month in which it is to be earned. It is neither ‘ then due ’ nor is it, within the meaning of Sec. 3719 Rev. Stat., ‘ to become due ’ because its becoming due depends upon a contingency.”

See also Edwards v. Roepke, 43 N. W. Rep. 554 [74 Wis. 575]; Hadley v. Peabody, 79 Mass. (13 Gray) 200; Phelps v. Railway Co., 28 Kan. 165.

In Newark v. Funk, 15 Ohio St. 462, 464, where a provision of the code, that “ any cláirns or choses in action due or to become due” might be subjected, was under consideration, Welch, J., says:

“We do not say or suppose that a salary which is not yet earned, or for the payment of which the proper period has not yet arrived, can be so garnisheed or attached. * * * The rule might, perhaps, safely be laid down, that whenever the debtor himself has a right of action, or a present claim which lapse of time alone will ripen into a cause of action, his creditor may, in the cases specified in the statute, be substituted to his rights by garnishment.”

The policy of a law that would authorize the subjecting of unearned wages to the payment of -debts well might be doubted. Its enforcement would tempt even an honest man to repudiate his debts. In Phelps v. Railway Co., supra, p. 172, Brewer, J., says:

“We may also remark'here without enlarging to any extent, that the construction claimed by the plaintiffs would tend to prevent dealings of any kind between the debtor and other parties. By serving a few garnishee notices the future earnings of a debtor might be wholly seized for the payment of his debts, leaving him nothing for personal support. In that way a laborer, however skillful and however valuable his services, might practically be driven from a community.”

It is said in the argument that the court of common pleas entertained a similar view of the statute, but affirmed the order because the' plaintiff in error was not prejudiced. We think he was prejudiced $31.2§ worth. He was served with notice of the hearing, as provided by the act, and is, we think, bound by the order made against his debtor, and in this view he is wrongfully deprived of his money and it was in prejudice of his rights, for in law it is his money and prejudice to his legal rights by taking his money without authority of law, and is not cured by applying the money to the payment of his debt.

The judgment of the court of common pleas is reversed and the order of the justice of the peace set aside at the costs of the defendant in error.  