
    [Civ. No. 3835.
    First Appellate District, Division Two.
    May 20, 1921.]
    J. W. VAUGHN et al., Appellants, v. GEORGE W. CONDON et al., Defendants; A. E. DAVIES, Respondent.
    HI Garnishment — Municipal Funds. — Garnishment is a statutory remedy and the rule of public policy is that it shall not be applied to funds due from a municipality.
    
       Id.—Failure to Object to Garnishment—Lack oe Waiver.— Garnishment of funds due a creditor of a municipal corporation are not waived by failure of the municipality to object thereto, since the exemption is founded upon considerations of public policy and cannot be waived by its officers and agents.
    1. Garnishment of municipalities, note, 51 Am. St. Rep. 114.
    APPEAL from an order of the Superior Court of Los Angeles County dissolving an attachment. Lewis R. Works. Judge.
    Affirmed.
    The facts are stated in the opinion of the court.
    Haas & Dunnigan for Appellants.
    E. Rosenkranz for Respondent.
   LANGDON, P. J.

This is an appeal from an order dissolving an attachment and declaring a garnishment null and void.

Action was commenced by the plaintiff against the defendants to recover five thousand two hundred dollars alleged to he due as rent of premises owned by plaintiffs and which were leased to the defendants. A writ of attachment was duly issued and copies thereof served upon the city treasurer of the city of Los Angeles and upon the clerk in the street opening department. It appears that the clerk was holding a warrant, payable to the defendants, which was to satisfy a judgment in their favor in a proceeding for opening a street, and that the city treasurer had funds applicable to the payment of such warrant.

The defendants answered the complaint and made a, motion for an order declaring the garnishment null and void, upon the ground that it was of funds due from a municipal corporation, and that the purported garnishment did not comply with the requirements of section 710' of the Code of Civil Procedure. The motion was granted and the garnishment declared void.

As a matter of public policy, general provisions making property subject to execution, garnishment, or liens are construed to apply only to property of private persons and corporations, and not to that of public corporations or bodies politic. (Skelly v. School District, 103 Cal. 652, [37 Pac. 643] ; Ruperich v. Baehr, 142 Cal. 193, [75 Pac. 782].) This rule has been modified in this state in the case of executions by the provisions of section 710 of the Code of Civil Procedure, which prescribes that in order to seize funds due a creditor of a municipal or public corporation, it is necessary to file a duly authenticated transcript ■ of a judgment for money with the auditor of said city. There is no code provision changing the general rule of public policy in cases of garnishment. Garnishment is a statutory remedy, and the rule of public policy is that it shall not be applied to funds due from a municipality.

Appellant argues that as the money was due in a street proceeding, it was not primarily due from the city, but was held by the city as money in trust for the defendants,—and that the general rule with reference to garnishments applies under such circumstances. We see no reason for a different rule in such a case when we consider the reasons for the rule of public policy herein anouneed. The reason for that rule is well stated in the case of Shelly v. School District, supra, by the following quotation from an Illinois case: “It must be decided as a question of public policy. These municipal corporations are in the exercise of governmental powers to a very large extent. They control pecuniary interests of great magnitude, and vast numbers of human beings who are more dependent on the municipality for the security of life and property, than they are on either the state or the federal government. To permit the great public duties of this corporation to be imperfectly performed, in order that individuals may the better collect their private debts, would be to pervert the great objects of its creation. ... We understand, however, the counsel for the appellant to concede that money due municipal officers, agents or contractors is not liable to garnishment, but, it is insisted, if the city had been required to answer, the alleged indebtedness in the present case would not have fallen in either of these classes. But, in our opinion, the city should not be subjected to this species of litigation, no matter what may be the character of its indebtedness. If we hold it must answer in all these eases, and the exemption from liability be allowed to depend in each case upon the character of the indebtedness, we still leave it liable to a vast amount of litigation in which it has no interest, and obliged to spend the money of the people and the time of its officials in the management of matters wholly foreign to the object of its creation.” It would seem that these objections to applying to a municipality the general provisions of the garnishment statutes are equally potent whether the city is the primary debtor or whether it holds the fund as agent for the property owners. But however that may be, we are not called upon to decide that question in the present case because, so far as the record shows, the money garnished constituted a direct obligation of the city to the respondent. The record does not disclose under what authority or circumstances the city of Los Angeles became indebted to respondent, or the character of that indebtedness. The case, therefore, falls within the general rule announced in the cases hereinbefore cited.

Appellants further contend that the municipality waived any objection to the garnishment by failing to object thereto, and that the creditor cannot urge this exemption. The rule of law herein applied, being founded upon considerations of public policy, for the protection of the best interests of the persons dependent upon the municipality for the security of life and property, we think it cannot be waived by the officers and agents of the municipality. This was expressly decided in the case of Porter v. Perdue, 105 Ala. 293, [53 Am. St. Rep. 124, 16 South. 713], in which it was said: “Garnishment is a remedy or process of purely statutory creation and existence. . There is no authority for a resort to it—courts are without jurisdiction to grant and effectuate it—except in cases and against parties which and who are within the terms of the statute. Public corporations, such as towns and cities, are not within the purview of the statute of garnishment in this state. They are held not to be subject to this process, unless included in unequivocal terms by the letter of the statute, on grounds of public policy, and our statute does not(So include them. . . . But whether the nonliability of such corporations to this process be put upon the idea of exemption merely from the operation of a statute broad enough to embrace them, or upon the idea that they are not embraced at all in the terms of the statute, is of no practical consequence. If they are not within the statute at all, no court has, nor by consent can acquire, jurisdiction to proceed against them in this way; and if it is a mere matter of exemption, the same public policy which gives life to it is potent also to prevent the officers and agents for the time being of such corporations from waiving the exemption by appearing, without objection, and admitting indebtedness for the corporation.”

The order appealed from is affirmed.

Nourse, J., and Sturtevant, J., concurred.  