New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-02-09
THE COURTS.
Fourth District COurt-Imp0rtant Decision
by Judge Theard-Snlaries and Wages
Exempt from Seizure.

Fourth District Court-Importan Decision
by Judge Theard-Snlaries and Wages
Exempt from Seizure.
Judge Theard yesterday rendered the fol-
lowing decision, which interests every body
OKeefe VS.. Kleinpeter - New Orleans,
Mobile and Texas Railroad Company, gar
nishees The plaintiff, O'keete. having OBJ
tanned judgment against the defendant IN
the above entitled suit, caused writ of
tieri facias to issue, which, together with the
notice and interrogatories usual in such pro
ceedings, was served upon the New Or
leans, Mobile and Texas Railroad Company,
for the purpose of seizing in their hands any
money belonging to defendant.
In response to the interrogatories, the said
company answer that the defendant is in
their employ. as civil engineer, at salary
OF $3.50 per month, and that the sum of $50
is due him on account of said salary.
At the time of filing said answer, and
since, the garnishees have excepted TO
plaintiffs right to seize the said $50 in
their hands, upon the following grounds,
to wit:
l. That said seizure is in violation of sec
ton two of the act of the General Assembly
of this State, approved February Il. 1870,
and numbered thirty-one of the acts Of
that year.
tcle 6i7 of the Code of Practice.
g. That said seizure is in violation OF so
much of article 1892 of the Civil Code as
provides that money due tor the salary of
an office, or wages or recompenSe for per
sonal services can not be made liable to
the payment OF debts.
. AS to the first ground OF the exec ption. it
is necessary only to quote the language OF
the statute therein referred to. 1t reads as
follows:
And no attachment, execution.
trustee, process, garnishment injunction,
order. notice, or legal proceeding made. OBJ
tanned, issued, or taken after the passage of
this act, in behalf of any party or parties
whomsoever. shall create a lien upon. or
bind, or hinder, or stay the payment of any
moneys due or to become due from the said
company to any person or persons, corpora
tion or corporations, whOmsoeyer or what
soever for any service rendered, labor per
formed, or materials or supplies furnished
for the construction, maintenance or opera
ton of the railroad of said company or anv
structure or structures. or fencing upon the
line thereof; but all payments on any such
account or accounts may be made by said
company. at its option, Tree from any legal
obstruction or hIndrance, directly to the
party or parties with whom said company
shall have had the dealings out of which
such payments shall have become due.
This statute, passed with express refer
ence to the company, made garnlshees II
this suit, and with a view to the promotion
and facilitation OF work of public lmpcr-
tance and utility, would seem to control the
question presented for adjudication beyond
the possibilities of doubt. and | might
stop here.
But if there is any doubt on that point.
the examination OF the next two questions,
which will consider together. will clear il.
Previous to the revision of the Civil Code
and Code of Practice, and the adoption,
upon the fourteenth OF March 1870. of what
are commonly known as Rays Civil Code
and Code of Practice. there existed in these
codes two articles. respectively numbered
1887 of the Civil Code and 6i7 of the Code OF
Practice. which reads as follows:
&C. c., art. 1887. There are also rights
which are merely personal, and which can
not be made liable to the payment of debts,
and, therefore, no contract respecting them
comes within the provision of this section:
these are the rights Of personal servitude,
OF use and habitation. of usutruct of the
estate of minor child. to the income of
dotal property, to money due for the salary
of an office, OF wages or reconpense tor
personal services
&c. p, art. Ga But if the debtor has
neither movables, nor slaves, nor im1nov-
| able property. the sheriff may seize the
| rights and credits which belong to him. and
! all sums of money which may be due to him,
| in whatever right, unless it be for alimony
| or salaries of office.
And by section ten Of an act approved
| April -, 1924. it was provided THAT III case
| the said Code of Practice should contain
any provisions contrary OF repugnant 10
| those of the Civil Code, the latter shall be
| considered as virtually repealed or thereby
| amended in that respect
| Under this jurisprudence the Supreme
| Court held with reason that the Code of
| Practice must govern, that the only sala-
| ries exempt fIom seizure were those de-
rived from public offices, and that wages
| or recompense for personal services in any
! other capacity are liable to seizure. Vance
VS.. Latferanderie, 4 r., $40; Conrey VS..
| COPELAND. 4 A.. 307.
| And if the Jurisprudence is still the same,
| l have no doubt that the garnishment in
| this case ought to be dismissed, because the
servants and employees of a railroad COM
| pany, incorporated under the laws of the
| State, prosecuting work of pubic impor-
tance and utility, should be considered as
attached to a public Office, for the main
tenance and management OF the highways
| of travel of the State.
But the revision of the code has alto
| gether changed the jurisprudence on this
| point.
! Thejpresent Civil Code and Code of Prac--
| tice were approved on the fourteenth OF
| March. 1870, and there is no law giving
! preference to the one over the other. They
are of equal rank and dignity, and must be
| construed together. as being in pari Ddterto.
| The two articles referred to have been
| re-eDacted rerbahn, ct Nter0tun,, with the
| exception of the word slaves, from the arti-
Gle 6i7 of the old Code of Practice. the
article 1887 of the old Civil Code being now
| 1892 of the new.
As they now stand the exemption ex-
tends to all sorts of salaries, which ever
| they may be, and to all kind of wages or
| recompense for personnel services.
| This question l consider to be fully set
| tied by the decision of the Supreme Court
! in the case of Case. receiver, VS.. Richard
| Taylor, 2S A 497. in which the court hei'!
that the right of defendant to collect tolls
| of the New canal and shellrOad, being q
personal right and recompense for per
sonai services. was not liable to seizure,
| by virtue of article 1892 OF the Revised
| Civil Code.
| For these reasons. let the exceptions be
maintained, the proceedings Of garnish,
ment dismissed and the garnishees released
from all obligations hereunder.
Suit Against the Germania Insurance
| Company.-The case of Mary Jacobs, widow
of George B. femme, VS.. the Germania In
surance Company, came up before Judge
Theard yesterday. Plaintiff sues upon
fire policy, No. 1885, to recover $2oO0 for q
| stock in trade fiytrIraa and household tur