The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1908-05-30

seventy per cent. of such salary,
| stipend wages annuity, or pension,
which shall then be or shall thereafter
become due, owing or payable to such
| defendant until the suit against him
shall have been finally determined and
the final judgment obtained against
| him, if any, shall have been fully paid
with legal interest thereon; provided,
however, that no more of such salary,
stipend, wages, annuity or pension
shall be thus withheld from said de-
| PENDANT in advance of final judgment
! than shall be sufficient to meet the
demand of the plaintiff or plaintiffs
| in such suit or suits together with
costs and legal interest.
Section 2115B. In case there shall
be certified to such garnishee a judg-
ment for the plaintiff, from or to
which no appeal or execution shall,
at the time of its rendition, have been
noted it shall be incumbent upon such
garnishee to pay to such plaintiff such
sum or sums as shall heretofore have
! been sequestered and not drawn
against in pursuance of such suit if
such Judgment shall equal or exceed
such sum or sums. If the amount so
sequestered and not drawn against
judgment, then such sequestration and
delivery to such plaintiff by such
garnishee of a sum equal to twenty
five per cent. of such salary, stipend,
wages, annuity or pension shall con-
tinue from week to week, or from
month to month, until such judgment,
with legal interest thereon, shall be
fully paid, or until such defendant
shall quit the service of and dissolve
his relation to the garnishee upon
which seQuestration is founded"
1t is true that the garnishee is Meth
err an attorney, agent, factor or trustee
of the defendant in the primary mean
ings of those words, but the word
trustee has a we'll defined second
airy meaning in connection with garn-
ishment which gives the name "trus
tee process to garnishment proceed
ings in several states.
1.-The word trustee as used in the
various provisions of the statutes re-
lating to trustee process, manifestly
denotes the debtor or agent of the
principal defendant, j. e.. the person
against whom an action ex contractu
at law only might be maintained in
favor of the principal defendant and
is not used in it's technical sense
An examination of the statute As
amended diScloseS a difference in
phraseology in regard to proceedings
before and after judgment. 1t will be
noted that no rights under the new
sections attach upon the service of
process, but the rights and liabilities
of the parties up to the date of trial
remain as fixed by r. L. Secs. 2114,
2115 and 2116. From the time of trial
until final Judgment the garnishee may
be ordered not to pay more than IS
per cent. of the salary which shall
then be or shall thereafter become due.
owing or payable. 1t may fairly be
considered that no salary becomes due,
owing or payable if the defendant is
indebted to the garnishee and there
fore that during this period the gar
nishee would be entitled to the benefit
of any lawful setoff. After judgment,
however, the garnishee may be order
ed to deliver to the plaintiff a sum
equal to 25 per cent. of the defendants
salary until the Judgment is fully paid
or the defendant quits the service of
the garnishee. Here there is no quai>
ification that the salary must be due
and owing or that it actually be the
salary of the defendant, but the ap-
parent intention is to give the plain
tiff priority over all claims to an |
amount equal to 25 per cent. of the
salary.
We find nothing unconstitutional in |
such a provision. The right of private /
contract is not interfered with by |
legal process directed against prop |
erty which may be subject matter of |
the contract Attachment garniSh- |
ment, mechanics liens, judgment |
liens, condemnation proceedings and |
all other processes which determine |
the priority in which a debtors eff
fects shall be applied or which result
in compulsory sequestration of prop |
erty may affect property under con-
tract or in regard to which the owner
desires to contract, yet they afford the
dues process of law required by the
constitution.
The order of the court in this case
does not specify when the withhold
ing of the twenty-five per cent of de-
PENDANTS salary is to begin, but in the
absence of a date would properly be |
construed as having no retroactive eff
feet. but as referring only to salary
accruing from and after the date Of
final Judgment. Thus construed it is
correct as far as it goes. 1t may be
assumed that the money withheld
should be paid to the plaintiff or the
plaintiff may move that the order be
modified to express this more clearly.
The order appealed from is affirmed.
Lyle A. Dickey for plaintiff; D. L.
Wilmington and w. A. Greenwich
Caste & Wilmington on the brief for