
    PROCEEDINGS IN AID OF EXECUTION..
    [Lake (7th) Circuit Court,
    January Term, 1906.]
    Cook, Burrows and Laubie, JJ.
    Wesley Sweet v. W. C. Barnum & Co.
    Pabol Evidence that Claim was bob Necessabies Competent in Pboceedings int Aid off Execution.
    Under proceedings in aid of execution it may be shown by parol evidence* that the claim upon which the judgment was rendered was for necessaries,, and ten per cent of the earnings of-the judgment debtor subjected to the payment of the claim of the judgment creditor.
    [Syllabus by the court.]
    EbboR to Lake common pleas court.
    E. F. Blakley, for plaintiff in error:
    The original claim has by being sued upon and merged in the judgment, lost its vitality and expended its force and effect. 2 Black, Judgments Sec. 674; Freeman, Judgments Sec. 215.
    Parol evidence is not admissible to show that a judgment was founded upon matters not presented by the pleadings. 2 Black, Judgments Sec. 626.
    The legal effect of a judgment cannot be varied by proof, outside the record. Wool/worth v. Brinker, 11 Ohio St. 593; Sargent v. Sargent, 11 Dec. 218 (8 N. P..238).
    A claim for necessaries reduced to judgment cannot be basis of proceedings in aid of execution under 10 per cent law. Boiler v. Esman, 15-Dee. 579; Salisbury v. Souse, 15 Dec. 584; Brown v. West, 73 Me. 23; Oran v. Houdlette, 36 Me. 15; Bioknell v. Trickey, 34 Me. 273; Bangs v. Watson, 75 Mass. (9 Gray) 211.
    B. C. Shepherd, for defendant in error:
    The proper time for the debtor to claim his exemption, is when the officer is about to levy. Sears v. Hanks, 14 Ohio St. 298 [84 Am. Dec. 378],
    It is the privilege of the debtor, not the duty of the justice", to claim exemptions. Bempe v. Bavens, 68 Ohio St. 113 [67 N. E. Rep. 282] ; Constable v. White, 12 Dec. Re. 18 (1 Handy 44).
    The words “claim, debt or demand” cannot be construed to mean or to refer to the judgment on the account. Porter v. Wagner, 36 Ohio St. 471; Shirland v. Bank, 65 Iowa 96 [21 N. W. Rep. 200]; Lake Shore & M. S. By. v. Hutchins, 37 O. S. 282.
    When the proceedings in aid of execution were instituted under favor of Rev. Stat. 6680-1 (Lan. 10264) et seq., it brought the parties into the same relation as though garnishment proceedings had been, instituted.
    
      
      Kerruish v. Meyers, 11 Circ. Dec. 666 (21 R. 434),'having filed the proceedings in aid, his counter affidavit denying that the goods were necessaries and that 10 p'er cent of his wages were liable to the payment of the account, Barnum & Co. should have been allowed to show that the statements made in the counter affidavit were not true and that the claim, debt or demand was for necessaries. Kirk v. Stevenson, 59 Ohio St. 556 [53 N. E. Rep. 49]; Goston v. Paige, 9 Ohio St. 397; Bradley v. Wacker, 7 Circ. Dee. 565 (13 R. 530).
    The introduction of this evidence would not have varied the terms of the original judgment on the account, as the proceedings were a separate and distinct action.' Tlarñson v. King, 9 Ohio St. 388; Young v. Gerdes, 42 Ohio St. 102; Burkham v. Cooper, 1 Circ. Dec. 371 (2 R. 77) ; Trout v. Marvin, 24 O. C. C. 333; Barbour v. Boyce, 8 Dee. 548 (5 N. P.273).
    The provision of the statutes making 10 per cent of the personal earnings of a debtor liable to seizure for a “claim, debt or demand for necessaries” cannot be construed to mean that the words “claim, debt , or demand” are identical with or refer to the judgment on the account; the judgment is the mere evidence of the debt. Latham v. Blake, 77 Cal. 646 [18 Pac. Rep. 150],
   COOK, J.

Barnum & Co. filed a bill of particulars against Wesley Sweet before a justice of the peace of this county, claiming there was a certain amount due them on account of goods sold and delivered. The claim as a matter of fact was for necessaries, but it was not so stated in the bill of particulars. Sweet made no defense and judgment was obtained by default for the full amount against him.

Some time afterwards Barnum & Go. commenced proceedings against Sweet under the statute in aid of execution, and alleged in their affidavit that the Baltimore and Ohio Railroad Company was indebted to Sweet for wages, and sought to have 10 per cent of such wages appropriated to the payment of their claim, upon which the judgment was obtained, averring in their affidavit that the claim was for necessaries furnished Sweet.

Sweet filed a motion to dismiss the proceeding upon the ground that Barnum & Co. having filed a bill of particulars averring that his claim was upon an account for goods sold and delivered and taken judgment upon the same, they cannot in the proceeding in aid of execution set up that the claim was for necessaries

The justice of the peace sustained the motion of Sweet and.dismissed the proceeding. Error was taken to the common pleas court; that court reversed tbe judgment of tbe justice; set tbe case down for trial; rendered judgment ordering the Baltimore and Ohio Railroad Company to pay 10 per cent of tbe wages due Sweet into court to be applied upon tbe judgment of Barnum & Co.; and tbe case is now before this court upon error to reverse that judgment.

Tbe claim of plaintiff in error before us, as it was below, is that tbe claim of Barnum & Co. in tbe proceeding in aid of execution is upon a judgment rendered upon a bill of particulars upon an account for goods sold and delivered, and is in no way a claim for necessaries. Tbe claim of plaintiff in error is twofold. First, that parol evidence cannot be introduced to explain the bill of particulars, and second, that the judgment of tbe court merged the claim, whatever it was, into the judgment, and that a judgment is not a claim for necessaries.

Tbe defense, to say tbe least, is ingenious and what is more has the-support of judges of two common pleas courts of tbe state, for whom we have the highest respect, and also would seem to have tbe support of the courts of tbe highest resort of several of tbe states. Roller v. Esman, 15 Dec. 579; Salisbury v. House, 15 Dec. 584; Brown v. West, 73 Me. 23; Bangs v. Watson, 75 Mass. (9 Gray) 211.

We think the difficulty arises from a proper construction of Rev. Stat. 5430 (Lan. 8958) respecting the words “claim, debt or demand.” When we take all the sections of the statute together, it is apparent that these words are not restricted to the claim, debt or demand upon which the proceeding in aid of execution was based, but upon the claim, debt or demand which went into the judgment.

There is no doubt but what the original claim is usually merged into the judgment, and for most purposes is wiped'out by the judgment.

“The cause of action, though it may be examined to aid in interpreting the judgment, can never again become the basis of a suit between the same parties. It has lost its vitality; it has expended its force and effect. All its power to sustain rights and enforce liabilities has terminated in the judgment and decree. It is drowned in the judgment and must henceforth be regarded as functus officio.”

Rreeman, Judgments See. 215.

That is true of the judgment when the judgment is involved, d„u the subjection of the property of a debtor to the payment of a claim is entirely different. Exemptions cannot be claimed until the property is sought to be executed. Conditions then surrounding the parties alone are inquired into. The judgment has no force and effect save that the claim of the creditor is made certain, and it is necessary to permit execution, but as to what property is exempt and how exempt depends upon' tbe conditions pertaining, at tbe time tbe debt is contracted, and tbe execution is sought to be enforced. As against many claims no exemptions are allowed at all, although judgments are rendered upon tbe claim. Judgments upon mechanics’ liens; under tbe liquor laws; for taxes, and many others that might be mentioned.

It seems to us that what is denominated in Rev. Stat. 5441 (Lan. 8970) by “claim, debt or demand for the payment of which it is sought to subject such personal earnings is one for necessaries furnished to the debtor, his wife or family; — then only 90 per centum of such personal earnings — of the debtor shall be exempt,” means the original claim, debt or demand. Any other interpretation would make the provisions wholly ineffective. No execution could be issued until judgment is obtained; no action upon the judgment could be instituted until judgment was obtained; no proceeding in aid of execution could be instituted until judgment, and indeed no order can be made in attachment in favor of the creditor as to disposition of property or the turning over to him the amount. claimed due from garnishee under Rev Stat. 6501 (Lan. 10078) upon which so much reliance is placed until judgment is obtained; and if after judgment and before order as to the claim garnished, the debtor interposes that the judgment merges the original claim and the judgment is not for necessaries, the creditor is entirely foiled in his attachment próeeeding; of course, if he does not or cannot proceed in attachment, he is entirely remediless as to the 10 per cent provision. Such a holding as contended for by plaintiff in error would make the provision of the statutes wholly nugatory and the action of the legislature wholly inconsistent with its design.

Having seen that under our statute the judgment does not so merge the claim as to preclude the showing as to of what it consisted, it necessarily follows that it may be done by parol.

The theory that we adopt is fully sustained by the supreme court of Rhode Island in Thompson v. Roach, 15 R. I. 417 [6 Atl. Rep. 790]. The syllabus of that case is:

“Pub. St. R. I. 209, Sec. 4, cl. 12, exempts from attachment wages not exceeding $10, except when the cause of action is for necessaries. Upon action in debt upon judgment recovered against defendant in action in assumpsit for necessaries, held, that the cause of action is as much for necessaries in the action in debt upon the judgment as in the action in assumpsit.”

Judgment of common pleas affirmed.

Burrows and Laubie, JJ., concur.  