The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1896-01-18
CLAIMED HIS EXEMPTION.
Court says He Must Have Chance to
Prove II.


suit of j. c. Kelly and Charles queen
VS. L. c. Reese is long but may be IN
teresting to justices and those having
business in the lower courts. Inc
matter came before the district court
on a writ of review, from Justice F. M.
Fox, and Judge Brantly points out an
error in the proceedings which the
court orders quashed. The opinion,
which explains the case. was as FOL
lows:
The petition upon which the Issuance
of the writ was based showed that the
action was begun by the plaintiffs in
the above justice court on the 9th DAY
of Dec 1895, against the petitioner,
and that an attachment was issued, by
virtue of which the Turtle Manufac-
turing company was made garnlsnee,
and on the 14th day of December
Judgment by default was rendered
against petitioner for the sum of S92.
An execution was issued and the Tut
tie Manufacturing company was again
made garnishee. On the 23rd day OF
| December the justice issued an order
directed to ]. A. Dunlap, manager OF
the futile company. citing him TO ap-
pear on the 26th of December to an
swer concerning any money in his pos
session due the petitioner, and before
| said hearing the petitioner filed in the
| Justice court, an affidavit claiming that
the amount garnisheed in the hands OF
| the Tuttle company was exempt from
/ execution. That Notwithstanding this
affidavit of exemption the justice or
| dered j. A Dunlap to pay into his
court the sum of $50. to apply towards
the satisfaction of the judgment. At
| torney ]. r. Boarman, in his argument
| for the petitioner, contended that the
| justice court in making this order ex-
ceeded it's Jurisdiction in this: First,
| that at the time of making said order
ha1 1Rff hof 10
by petitioner was exempt from eXecu-
ton and attachment by reason of the
affidavit of petitioner. Church Digest.
page 563. 3 Oregon, page Q, sec. 1922,
sub Z, code of civil procedure.
Second. That the justice had no tu-
| risdiction to make any order in the
premises for the reason that the exc
cution had not been returned unsatis-
| fled. Montana, page 34S.
Third. That said justice had no ju
risdiction to make any order for the
reason that plaintiffs failed to show
that said garnishee unjustly withheld
| money belonging to petitioner which
should be applied to the payment of
the said judgment. Sec. 1861, civil
code. 9 Montana, page 348; 8 Montana,
page 226. And upon the ground that
the said order was in violation of art.
g. sec. IL, of the constitution of the
state of Montana, in that II impaired
l1C ODllEdllOIl Vi TIE COilIdCl DclWttl
petitioner an dthe sal dgarnishee.
The courts findings in the case are
as follows: This Is an application for
a writ of ced-tiorari by L. l.. Reese, de-
PENDANT in a judgment rendered in the
Justices court of f. NJ. Fox, justice OF
the peace in and for Anaconda town.
ship, Deer Lodge county, Montana.
, Dec. IT, 1895. The matter complained
of is an order made b ythe said justice
on the 26th day of December, 1895, re-
. quiring one j. A. Dunlap, as manager
|, of the futile Manufacturing & Supply
company, a corporation, to pay into
court, to be applied in satisfaction of
said judgment, the sum of $50 due from
said company ITO the said Reese for his
personal services during the month of
, December. 1895. This order was made
by the said justice in proceedings sup
, | Elemental to the execution issued on
the judgment, instituted by the plant
n III in an effort to obtain satisfaction
thereof. In themselves, the proceed
ings supplemental to the execution are
regular, and no complaint is made OF
them in this regard. Pending these
| proceedings, however, the petitioner
4 Reese, by affidavit served upon j. NJ
Pickel. the officer serving the execution
and other papers in the proceedings
= and upon f. NJ. Fox, the justice be.
fore whom the proceedings were pend.
ing and who rendered the Judgment
/ made II appear prima facle that tn,
money sought to be applied to the sat
isfaction of the judgment was exemp
from garnishment by attachment OF
y execution, for the reason that Reese
the petitioner is the head of a famil,
: residing in the state of Montana ano
supported by his labor; that the none,
was earned by his own personal serv
= ice within so days next preceding tn
levy OF the execution: and that il wa.
therefore exempt. The justice, not
Is withstanding he was served with thi
affidavit. and had knowledge of tn
claim of the petitioner Reese, ignore,
,r said claim. and directed the said Dun
Il lap as such manager to pay into cour
the amount due from the company Z
the petitioner Reese, to be applied up
Is on said judgment This order appro
4e priating the personal earnings OF tn
petitioner aforesaid to the payment @
this Judgment. and ignoring his clair
s. of exemption. is the matter complaine
I'd of.
The questions presented by the appli
cation are: Does the code provide
~ right of appeal from an order OF thi
a character made by a justice of til
by peace? And. did the justice. in maxim
the order complained of. exceed his ju
risdiction?
an First. IL the right of appeal exist
ne this application should be dlsmisse,
y, The remedy of certiorari can be resorf
ed 10 only where the right OF appes
does not exist. Code civil procedui
194l This question then is determine
"a, by reference to the code Of civ. pro
"a sec l760-61. BY an examination
these sections. we find that there is I
: appeal from a Justices court to n
he district court, except from a judgmen
and then an appeal lies an dis take
the cause must be tried anew upon 1
ed merits, except where judgment HI
nd oeen rendered oy detault' when the al
80 peal must De tried upon the question
~. presented upon the face of the recor
ed II the record is regular on its face, Il
III | appeal fails. In all other cases Il
of court must hear proof and determii