
    Pennsylvania Rd. Co. v. Bell.
    
      Attachment — Exemption a personal privilege — Garnishee cannot plead defendant’s money exempt — Waiver of exemption by failure to make claim therefor — Irregularities, not jurisdictional, not available to garnishee, when.
    
    1. A garnishee, ordered to pay money into court, cannot show that a defendant in attachment was entitled to claim exemption; the right of exemption being a personal privilege, which defendant may waive.
    2. Failure of defendant to claim money attached as exempt waives exemption.
    3. Where the court issuing an order of attachment has jurisdiction of the subject of the action and power to issue an order of attachment upon the affidavit that was filed therefor, mere irregularities, not jurisdictional in character, cannot be taken advantage of in a collateral' proceeding.
    (Decided May 25, 1925.)
    Error: Court of Appeals for Lucas county.
    
      Messrs. Fraser, Hiett & Wall, for plaintiff in error.
    
      Messrs. Doyle & Lewis, for defendant in error.
   Williams, J.

The defendant in error, Floyd S. Bell, in an original action, independent of any proceedings in the court below in connection herewith, filed his statement of claim on November 8, 1922, in the municipal court of Toledo, Ohio, against Walter A. Hoffman, seeking to recover $54 for an amount alleged to be due on an account for the rent of a house. On the same day he filed an affidavit for attachment, regular in form, setting forth, in substance, that the claim was an action for an amount due on an account, and founded upon contract; that the claim was just; that the plaintiff ought to recover the sum of $54; that the property about to be attached was not exempt from execution; that the defendant was a nonresident of Lucas county, Ohio, and, in addition thereto, that the affiant believed that the Pennsylvania Railroad Company was indebted to the defendant and had property, moneys, and rights of action of the defendant in its possession and under its control, subject to be attached in that action. November 13, 1922, the Pennsylvania Railroad Company, through its solicitors, Marshall & Fraser, filed an answer in writing under date of November 10, 1922, stating that there was due to the defendant $131.35, and that he was a married man, and the head and sole support of a family. November 14, 1922, the order of attachment was returned showing the garnishee was served and the defendant therein not found. November 15, 1922, Walter A. Hoffman, the defendant in that action, appeared in the municipal court in person, and entered his appearance, and confessed judgment in favor of the plaintiff in the sum of $54. Judgment was rendered for that amount and costs, and, as a part thereof, the garnishee was ordered to pay into court the sum of $59.40, to be applied according to law; the latter amount being the amount claimed with interest. May 8, 1923, the parties again came into court by counsel, and argued a motion for an order to complete and perfect the order of attachment, at which hearing on the motion counsel for the garnishee was present, and on the same day the court granted the motion, and again ordered the garnishee to pay into court the sum of $59.40, to which exceptions were entered by counsel for the garnishee.

The plaintiff in error, the Pennsylvania Railroad Company, refused to comply with the order to pay in the money, and thereafter, on June 5,1923, Floyd S. Bell, as plaintiff began án action in the municipal court against the Pennsylvania Railroad Company as defendant to recover $59.40, with interest, upon the order previously made in the former action brought by Floyd S. Bell against Walter A. Hoffman. Judgment was rendered in this second action in favor of the plaintiff. Thereupon the defendant filed its appeal bond, and appealed the cause to the court of common pleas of this county. Upon trial in the court of common pleas the record shows that, in addition to establishing the facts herein recited, it was stipulated between the parties that the original action brought by Floyd S. Bell against Walter A. Hoffman was for the recovery of $54 for the rent of a house in which Walter A. Hoffman resided. Judgment was rendered by the court of common pleas in favor of the plaintiff for the full amount asked, and the defendant in the court of common pleas, the Pennsylvania Railroad Company, who is the plaintiff in error here, filed its petition in error seeking a reversal of the judgment of the court of common pleas.

It is settled law in Ohio that it is not an available defense to an action upon an order requiring the garnishee to pay money into court for the garnishee to show that the defendant in the attachment case was entitled to claim that the money in the hands of the garnishee was exempt from execution under the laws of the state, for the reason that the right to select and hold property exempt from execution is a personal privilege granted to the defendant in attachment, which he may waive. Conley v. Chilcote, 25 Ohio St., 320; Chilcote v. Conley, 36 Ohio St., 545. As the defendant in attachment did not claim the money as exempt, he waived his exemption, and, unless there were irregularities in the proceedings, which were jurisdictional, and the order against the garnishee therefore invalid, the plaintiff in error cannot complain.

Though the plaintiff in error does not deny these principles, it claims that the affidavit for attachment was insufficient to warrant the garnishment of wages, or any part thereof, in the hands of the garnishee, and that under the facts and circumstances of the case only 10 per cent, of the wages could be garnisheed in any event, and that no demand was made therefor, as required by Section 10272, General Code; that both a sufficient affidavit for that purpose and the service of such a demand according to statute were jurisdictional in character; and that jurisdiction could not be acquired without such affidavit and demand. In the case of Root & McBride Bros. v. Davis, 51 Ohio St., 29, 36 N. E., 669, 23 L. R. A., 445, the Supreme Court of Ohio, in discussing what irregularities could be taken advantage of by a garnishee, when sued upon an order to pay moneys held under process of garnishment into court, uses the following language, at page 38 (36 N. E., 671):

“The other objections are, at most, based upon such irregularities as can only be taken advantage of by a proceeding in error, and are not available in a collateral proceeding, as the justice had jurisdiction of the subject of the action, and power to issue a writ of attachment upon the affidavit that was filed therefor.”

Using this statement as a key to the situation, we may say that, if the municipal court had jurisdiction of the subject of the action and power to issue a writ of attachment upon the affidavit that was filed therefor, mere irregularities not jurisdictional in character, which might be taken advantage of by a proceeding in error, could not be taken advantage of by the garnishee in a collateral proceeding.

There is no question that in the original action the court had jurisdiction of the defendant in attachment, because he was present in court at the time the judgment and order to pay in were rendered and made, and, in fact, confessed judgment at that time in open court. There is no question that the municipal court of Toledo had jurisdiction of the subject of the action because it is given power by statute to entertain suits on account for not exceeding the amount claimed in this case, and to issue writs of attachment, with notice to garnishee, in like manner as justices of the peace. Did the fact that no demand was made under the provisions of Section 10272, General Code, and the further fact that the affidavit contained no provision showing that the claim was for necessaries, and such additional facts as would show they were not exempt under the provisions of Section 10253, General Code, deprive the municipal court of jurisdiction to make the order requiring the garnishee to pay the money into court? We fail to see how the section as to demand has any bearing upon the present case, for the reason that the court in the original attachment case ordered the whole amount of the wages paid in, and not 10 per cent, thereof. It is very apparent that the plaintiff was not seeking to hold the personal earnings of the debtor for the excess over and above 90 per cent., under the provisions of Section 10272, General Code. The affidavit in attachment set forth that the property sought to be attached was not exempt from execution. While the answer filed by the garnishee set out that the defendant in attachment was a married man, and the head and sole support of a family, there is nothing in the record to show that that evidence was before the municipal court at the hearing at which the order to pay in was made. It also appears that it was orally stated by counsel for the garnishee at that hearing that the amount reported by the garnishee was due for wages earned by the defendant in attachment while in the employ of the garnishee. It may be that upon the hearing there was evidence ample to warrant the finding that the money was not exempt from execution, and, as the presumption is that the proceedings of the court were regular, we cannot find 'from the evidence at hand that that court was not warranted in finding that the property was not exempt.

If sufficient answer has not been made to claims of plaintiff in error, we may say further that the affidavit in attachment was regular in form, and, as drawn, no demand was required to make the proceedings by way of garnishment valid.

We are of the opinion that there is no jurisdictional defect in the proceedings, and, if there were irregularities, such are not disclosed by the record.

The judgment will therefore be affirmed.

Judgment affirmed.

Richards and Young, JJ., concur.  