
    PROCEEDINGS IN AID OF EXECUTION.
    [Circuit Court of Lake County.]
    Wesley Sweet v. W. C. Barnum & Co.
    Decided, January Term, 1906.
    
      Necessaries—When the Exemption May he Claimed—Parol Evidence Admissible—To Show Its Character before being Merged into Judgment.
    
    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.
    Brief of Elbert P. Blakley, attorney for plaintiff in error:
    When judgment is rendered on a claim or demand the claim or demand itself no longer exists but merges in the judgment. The original claim has by being sued upon and merged in the judgment lost its vitality and expended its force and effect. Black on Judgments, Yol. 2, Section 674; Freeman on Judgments, Section 215.
    Parol evidence is not admissible to show that a judgment was founded upon matters not presented by the pleadings. Black on Judgments, Yol. 2, Section 626.
    The legal effect of a judgment can not be varied by proof, outside the record. Woolworth v. Wrinlter, 11 O. S., p. 593, at pp. 596, 597; Sargent v. Sargent, 8 N. P., p. 238; s. c. 11 Dee., p. 218.
    A claim for necessaries reduced to judgment can not be basis of proceedings in aid of execution under ten per cent. law. Boiler v. Esman, 
      
       15 Dec., 579; Ohio Law Bulletin No. 24, June 12, 1905; Salisbury v. House, 15 Dec., 584; Ohio Law Bulletin No. 24, June 12, 1905; Brown v. West, 73 Me., 23; Uran v. Houdletie, 36 Me., 15; Bioltnell v. Tricltey, 34 Me., 273; Bangs v. Watson, 75 Mass. (9 Gray), 211.
    See following sections of Revised Statutes: 6489, 6501, 6680-1, and 5430.
    
      Brief of R. G. Shepherd, attorney for defendant in error:
    The question as to whether certain goods sold are “necessaries” is one to be decided after the original judgment of the justice is entered; it is one involving the remedy and-can not be determined in the original action. The questions that could have been determined and which were determined in the action on the account were (1) is -the defendant indebted to plaintiff; and if so (2) for how much. The default judgment rendered under favor of Section 6577, O. R. S., decided in the affirmative of both of those questions and on those palone. To have pleaded in the bill of particulars that the goods were necessaries would have been pleading a conclusion of law and would have anticipated a defense available only under proceedings in aid of execution. The proper time for the debtor to claim bis exemptions is when the officer is about to levy (Sears v. Hanks, 14 O. S., 298); it is the privilege of the debtor, not the duty of the justice, to claim exemptions (Bempe & Sons v. Bavens, 68 O. S., 113, at 125). Section 6257, 0. R. S., provides what shall be alleged.in the bill of particulars. Constable & Co. v. White, 1 Handy, 44.
    The words “claim, debt or demand” found in Sections 5430-6 and 5441, O. R. S., can not be construed to mean or to refer to the judgment on the account. This original judgment did not by its recitals estop Barnum & Co., from showing in .proceedings in aid of execution, that the goods sold were necessaries, because where a judgment is relied upon by way of estoppel the question is not what the court might have decided, but what it actually did decide (Porter v. Wagner, 36 0. S., 471; Shirlcmd v. Bank, 21 N. W., 200). The original judgment shows that Sweet was indebted to Barnum & Co. in a certain sum and that is all that it shows. Inasmuch as the bill of particulars alleged nothing about necessaries, how could the judgment show the questions not raised in the pleadings? B. B. v, Hutchins, 37 O. S., 282.
    The questions at issue in the proceedings in aid of execution arose at a time when new parties had intervened, when different rights had arisen and at a time subsequent to the rendition of the judgment on the account, and hence it was in tire nature of a separate action founded and dependent upon the judgment in the original action.
    
      When the proceedings in aid of execution were instituted under favor of Section 6680-1 et seq., it brought the parties into the same relation, as though garnishment proceedings had been instituted (21 O. Cir. Ct., 434, K&rrush v. Myers); and Sweet, having filed in the proceedings in aid, his counter affidavit denying that the goods were necessaries and that ten per 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 necéssaries. Kirk v. Stephenson, 59 0. S., 556; Cos ton v. Paige, 9 0. S., 397; Bradley v. Waeker, 13 Cir. Ct. Rep., 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. Harrison v. King, 9 O. S., 388; Young v. Gerdes, 42 0. S., 102; Burkham v. Cooper, 2 Cir. Ct. Rep., 77; Trout v. Marvin, 2 C. C.—N. S., 523; Barbour v. Boyce, 5 Nisi Prius Rep., 273.
    The provision of the statute malting ten per cent, of the personal earnings of a debtor liable to seizure for a “claim, debt or demand for necessaries” (0. R. S., 5430-6 and 5441) can not 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. Balke, 18 Pac.. Rep., 150); a judgment of a court is a finding upon certain facts proved, while a debt, claim or demand is the result of certain acts of the parties to the action.
    The defendant in error, therefore, claims that it should have been allowed to show in the proceedings in aid of execution the nature of the goods sold and delivered for the sole purpose of determining the question as to whether or not they were necessaries.
    Cook, J.; Borrows, J., and Laubie, J., concur.
    Barnum & Company filed a bill of particulars against Wesley Sweet before a justice of the peace of this county, claiming that 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 & Company commenced proceedings against Sweet under the statute in aid of execution and alleged in their affidavit that the Baltimore & Ohio Railroad Company was indebted to Sweet for wages and sought to have ten 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 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 can not 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 the judgment of the justice; set the case down for trial; rendered judgment ordering the Baltimore & Ohio Railroad Company to pay ten per cent, of the wages due Sweet into court to be applied upon the judgment of Barnum & Company, and the case is now before this court upon error to reverse that judgment.
    The claim of plaintiff in error before us, as it was below, is that the claim of Barnum & Company in the 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 ño way a claim for necessaries. The claim of plaintiff in error is two-fold. First, that parol evidence can not be introduced to explain the bill of particulars, and second, that the judgment of the court merged the claim, whatever it was, into the judgment, and that a judgment is not a claim for necessaries.
    The defense, to say the least, is ingenious and what is more has the support of judges of two common pleas courts of the state, for whom we have the highest respect, and also would seem to have the support of the courts of the highest resort of several of the states. Boiler v. Esman, Common Pleas Court of Hamilton County, Weekly Law Bulletin, June 12, 1905; Salisbury v. House, Common Pleas Court of Montgomery County, Weekly Law Bulletin, June 12, 1905; Brown v. West, 73 Me., 23; Bangs v. Watson, 75 Mass. (9 Gray), 211.
    We think the difficulty arises from a proper construction of Section 5430 of the Revised Statutes 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.” Freeman on Judgments, Section 215.
    That is true of the judgment when the judgment is involved, but the subjection of the property of a debtor to the payment of a claim is entirely different. Exemptions can not 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 depends upon the conditions pertaining at the time the debt is contracted and the execution is sought to be enforced. As against many claims no exemptions are allowed at all, although judgments are rendered upon the claim. Judgments upon méchanos ’ liens, under the liquor laws, for taxes, and many others that might be meneioned.
    It seems to us that what is denominated in Section 5441 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 ninety 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 provision 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 tho amount claimed due from garnishee under Section 6501 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 proceedings; of course, if he does not or can not proceed in attachment, he is entirely remediless as to the ten per centum 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 what it consisted of, 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, 6 Atlantic Rep., 790. The syllabus of that case is:
    “Pub. St. R. I. 209, Section 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 court of common pleas affirmed.
    
      Elbert F. Blakely, for plaintiff in error.
    
      R, G, Shepherd, for defendant in error,
    
      
      Reversed, Esman v. Roller, 8 O. L, R., 116.
    
     