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Under a decree directing a man to pay his divorced wife as alimony a specified sum on the last day of each month during her life, there is no debt due, or to become due, during a month prior to the time fixed for payment, which is subject to garnishment in his hands.

[See annotation on this question beginning on page 361.]

APPEAL by plaintiff from an order of the District Court for Woodbury County (Newby, J.) sustaining a motion to discharge the garnishees in consolidated cases brought to reach, and subject to the payment of judgments for groceries furnished defendant, instalments for alimony. Affirmed.

Statement by Faville, J.:

Two cases were consolidated for submission to the trial court. The appeal involves the action of the trial court in discharging garnishees

on motion. The facts essential to a consideration of the questions involved appear in the opinion.

Messrs. Burgess & Gill, for appellant:

In the absence of the specific provi

sions against alienation in the supplementary decree, the money in the hands of O. J. Moore, garnishee, and in the bank, could be garnished and plaintiff, and the court erred in holdheld under the garnishment by the ing to the contrary.

Picket v. Garrison, 76 Iowa, 347, 14 Am. St. Rep. 220, 41 N. W. 38; Walker v. Walker, 127 Iowa, 77, 102 N. W. 435; Chase v. Chase, 105 Mass. 385; Thayer v. Thayer, 145 App. Div. 268, 129 N. Y. Supp. 1035; Schooley v. Schooley,

(— Iowa, —, 184 Iowa, 835, 11 A.L.R. 110, 169 N. W. 56; Keyser v. Keyser, 193 Iowa, 16, 186 N. W. 438; Whitcomb v. Whitcomb, 52 Iowa, 718, 2 N. W. 1000; Barber v. Barber, 21 How. 582, 16 L. ed. 226; Sistare v. Sistare, 218 U. S. 1, 54 L. ed. 905, 28 L.R.A. (N.S.) 1068, 30 Sup. Ct. Rep. 682, 20 Ann. Cas. 1061; De Rousse v. Williams, 181 Iowa, 379, 164 N. W. 896; Schuler v. Schuler, 209 Ill. 522, 71 N. E. 16; Holton v. Holton, 153 Minn. 346, 41 A.L.R. 1415, 190 N. W. 542; Van Ness v. Ranson, 215 N. Y. 557, L.R.A.1916B, 852, 109 N. E. 593, Ann. Cas. 1917A, 580; Livingston v. Livingston, 173 N. Y. 377, 61 L.R.A. 800, 93 Am. St. Rep. 600, 66 N. E. 123; O'Hagan v. O'Hagan, 4 Iowa, 509; Elson v. Chicago, R. I. & P. R. Co. 154 Iowa, 96, 43 L.R.A. (N.S.) 531, 134 N. W. 547, Ann. Cas. 1914A, 955; Arp v. Blake, 63 Cal. App. 362, 218 Pac. 773; Park v. Park, 80 N. Y. 156.

The Iowa statute has extended the claims which shall be subject to garnishment to include precisely this kind of claim, by providing that "debts of a debtor not yet due" may be reached by attachment.

Rankin v. Smith, 174 Iowa, 537, 156 N. W. 756; Ottumwa Nat. Bank v. Norfolk, 185 Iowa, 1334, 172 N. W. 3.

Alimony is subject to garnishment, and can be reached by creditors.

Kenge v. Delavall, 1 Vern. 326, 23 Eng. Reprint, 499; Lillia v. Airey, 1 Ves. Jr. 277, 30 Eng. Reprint, 341; Ex parte Bremner, L. R. 1 Prob. & Div. 254; Scheffer v. Boy, 5 Pa. Co. Ct. 158; Stevenson v. Stevenson, 34 Hun, 157; Kelso v. Lovejoy, 29 Ohio C. C. 597, affirmed 76 Ohio St. 598, 81 N. E. 1189.

The money in the possession of O. J. Moore, or which he owed, or which was to become due, or which was in the possession of the Sioux National Bank, or which, according to the terms of the supplementary decree, the bank was entitled to receive from O. J. Moore, is subject to garnishment.

Ober v. Seegmiller, 180 Iowa, 462, 160 N. W. 21; Anderson v. Taylor, 131 Iowa, 485, 108 N. W. 1051; Lingenfelter v. Iowa Teleph. Co. 132 Iowa, 211, 109 N. W. 722; First Nat. Bank v. Davenport & St. P. R. Co. 45 Iowa, 120; Austin Nat. Bank v. Bergen, Tex. Civ. App. -, 47 S. W. 1037; Eau Claire Nat. Bank v. Chippewa Valley Bank, 124 Wis. 520, 109 Am. St. Rep. 966, 102 N. W. 1068; Bluthenthal v. Silverman, 113 Ga. 102, 38 S. E. 344; 12 R. C. L. p. 846, § 88.

215 N. W. 625.)

Messrs. Hays, Baron, & Mathews for appellee Hannah Moore.

Mr. George Magoun for appellee bank, garnishee.

Messrs. Shull, Stilwill, Shull, & Wadden for appellee Moore, garnishee.

Faville, J., delivered the opinion of the court:

On November 28, 1921, Hannah Moore obtained a decree of divorce from the garnishee O. J. Moore. Said decree awarded Hannah Moore alimony in the sum of $107,500, payable $17,500 immediately and $10,000 annually until the entire sum had been paid. This decree was performed by O. J. Moore until on January 31, 1924, when a supplemental decree was entered in the original divorce action. This decree was entered upon the motion of Hannah Moore, the plaintiff in the action for a modification of the original decree. Appearance was had by both parties, and, by written instrument duly filed, both parties. consented to the terms of the supplemental decree. By its terms said supplemental decree set aside and annulled the original decree and provided: "That the said defendant, O. J. Moore, shall pay to the Sioux National Bank of Sioux City, Iowa, the sum of $500 as of the 31st day of March, 1924, and a like sum on the last day of each and every month thereafter during the lifetime of the said plaintiff, Hannah C. Moore; said sums shall be paid to the said trustee aforesaid and by said trustee delivered or paid to plaintiff to be used by her for her support and maintenance only. The said sums herein provided to be paid shall be for the support and maintenance of said plaintiff, and shall not be subject to assignment or alienation by her prior to the dates of their maturity and payment to plaintiff, and said plaintiff shall have no property rights or interests therein until the same are actually paid to her."

The supplemental decree further provides: "To insure the payment of the sums herein described to be paid by said defendant, this decree

and judgment shall and is hereby declared to be a lien on any and all real property of the defendant, including the homestead wherein the parties resided prior to the decree of divorce."

At the time of entry of the supplemental decree, all payments due under the original decree had been made. Since the entry of said supplemental decree, payments have been made thereunder to the trustee on the last day of each month.

The appellant holds two judgments against Hannah Moore. In one action suit was begun on August 26, 1925, and judgment rendered. March 15, 1926. General execution was issued on said judgment on May 25, 1926, and the trustee bank and O. J. Moore garnished thereunder on May 25 and May 26, 1926, respectively. After said garnishment, the said O. J. Moore did not make payments to said trustee for the months of May and June, 1926, under the supplemental decree, and the amount of said payments exceeded the amount of appellant's judgment in that action. A portion of the claim sued on in this action was due on January 31, 1924, the date of the supplemental decree. In the other action, judgment was obtained on March 15, 1926, and garnishment was had under execution on July 16, 1926.

It is not seriously contended that the district court did not have jurisdiction to enter an order of modification of the original decree of divorce where proper application therefor was made, and the court had jurisdiction of the parties. Code, § 10,481. Our attention is therefore directed to a consideration of the supplemental decree and the rights of the parties in relation thereto, under the garnishment.

We meet at the outset the important question as to whether or not under this decree there was anything in the hands of the garnishees that could be the subject of a garnishment at the time the garnishment was served. There was nothing in the hands of the bank as trus

tee on the date of the garnishment. The real question is therefore nar rowed to the proposition as to whether or not the judgment creditors of Hannah Moore could garnishee O. J. Moore for future installments of alimony that might become due under the terms of this decree. Under the statute (Code, § 12,157), the service of garnishment forbids the garnishee to pay "any debt owing such defendant, due or to become due." It is also provided by statute (Code, § 12,169) that judgment may be entered against a garnishee if it is made to appear that he was "indebted" to the defendant "at the time of being served with the notice of garnishment." Code, § 12,172, provides: "If the debt of the garnishee to the defendant is not due, execution shall be suspended until its maturity."

The argument of both parties evinces an exhaustive study of the authorities on the question as to whether or not a decree awarding alimony creates "a debt" within the meaning of the garnishment statute. The precise question does not appear to have been before this court, heretofore.

In Schooley v. Schooley, 184 Iowa, 835, 11 A.L.R. 110, 169 N. W. 56, we considered the exemption statute with regard to the question as to whether or not a divorced husband who had married again and had thus become the head of a family could avail himself of the exemption provided by statute as to the earnings of a debtor against an execution issued upon a general judgment for alimony rendered in favor of his first wife. In that case there was a judgment for a stated sum payable in installments during her life or until she marry again. Certain installments were past due and unpaid. By a divided court we held that the husband was "a debtor" for said alimony, under such facts, within the meaning of the exemption statute, and that his personal earnings were exempt. The case is not controlling under the situation in the instant case.

(--Iowa, ---- 215 N. W. 625.)

There is an exhaustive review of the authorities pro and con on the question of whether or not an award of alimony is "a debt" in the majority and minority opinions in the Schooley Case.

In view of our conclusion, we do not deem a reconsideration of that question essential in the instant case and reserve any pronouncement thereon. Likewise we do not pass on the question of the limitations in the decree as to the assignment or alienation of alimony. We limit our decision solely to a consideration of the terms of the decree in the instant case, and as to whether or not the garnishee O. J. Moore was subject to garnishment at the date of service of the garnishment.

In this case there was no fixed sum of alimony provided for in the supplemental decree, and none was due and unpaid at the time of garnishment. The payments to be made were wholly contingent upon whether or not Hannah Moore would be alive on the last day of each succeeding month. Was the obligation of O. J. Moore under the decree to pay the sum of $500 on the last day of the month "a debt due or to become due" within the meaning of the garnishment statute? Whether or not we regard a decree for alimony as "a debt," it is obvious that there was no "debt due" at the time of the garnishment that could be reached by the creditor. Hannah having been alive on the last day of the preceding month and the installment of alimony for that month having been paid, there was no "debt due" at the time of the garnishment.

Was there "a debt to become due" so that it could be reached by the judgment creditor? The garnishment statute clearly contemplates that a garnishee shall be held only in the event that at the time of the garnishment he is then owing something to the judgment creditor. It must be something then due or something then owing that is to become due in the future. In other words, in order to hold a garnishee

under the statute, it must appear that there is a definite and fixed obligation to pay in any event. If such an obligation is shown, then the garnishee may be held whether the "debt" is "due" or whether only time is wanting to fix its maturity. In Armstrong v. Armstrong, 196 Iowa, 947, 192 N. W. 887, we said: "It is elementary that the right of the plaintiff, as against the garnishee, in the absence of fraud, can rise no higher than the right of the principal defendant (Streeter v. Gleason, 120 Iowa, 703, 95 N. W. 242; J. J. Smith Lumber Co. v. Scott County Garbage Reducing & Fuel Co. 149 Iowa, 272, 30 L.R.A. (N.S.) 1184, 128 N. W. 389; Des Moines Cotton Mill Co. v. Cooper, 93 Iowa, 654, 61 N. W. 1084; Smith v. Clarke, 9 Iowa, 241, 244; Packer v. Crary, 121 Iowa, 388, 96 N. W. 870; Munson v. Mabon, 135 Iowa, 335, 112 N. W. 775; What Cheer Sav. Bank v. Mowery, 149 Iowa, 114, 128 N. W. 7); that only a debt already due, or for the maturity of which time alone is necessary, is subject to garnishment (Ober v. Seegmiller, 180 Iowa, 462, 160 N. W. 21; Briggs v. McEwen, 77 Iowa, 303, 42 N. W. 303; Streeter v. Gleason, supra; Caldwell v. Stewart, 30 Iowa, 379); that the liability of the garnishee must be determined as of the date of the garnishment (Code, § 3935; J. J. Smith Lumber Co. v. Scott County Garbage Reducing & Fuel Co. 149 Iowa, 272, 30 L.R.A. (N.S.) 1184, 128 N. W. 389; Williams Bros. v. Young, 46 Iowa, 140; Huntington v. Risdon, 43 Iowa, 517); and that, in order to hold a garnishee upon his answers, an indebtedness must be clearly admitted or shown thereby (Streeter v. Gleason, supra; Hibbard v. Everett, 65 Iowa, 372, 21 N. W. 683; Morse v. Marshall, 22 Iowa, 290)."

With these well-established rules in mind, the question arises as to whether or not, under this decree, at the time of the garnishment, there was a debt for the maturity of which time alone was necessary. other words, was the obligation of O. J. Moore at the date of garnish

In

ment an obligation that was certain to mature and only time was necessary to fix the absolute liability, or was it a mere contingent obligation, that might or might not require any payment on his part?

Under the terms of the decree it is clear that whether or not O. J. Moore would ever become liable for any future payment at the time of garnishment depended wholly upon whether or not Hannah Moore was living on the last day of the month. It is not a case of the mere postponement of the maturity of an obligation that must be paid in any event at some future time. Something more than time is necessary to fix an obligation to pay anything, and that is the uncertain contingency that Hannah shall be living at a certain date in the future. If Hannah should die before the last of the month, certainly no liability could. attach to O. J. Moore. See Nehls v. Sauer, 119 Iowa, 440, 93 N. W. 346. Any contingent liability to pay upon the happening of an event would necessarily end the moment it became apparent that the event could never happen. The liability of the garnishee must be determined as of the date of the garnishment. Code, § 12157; J. J. Smith Lumber Co. v. Scott County Garbage Reducing & Fuel Co. 149 Iowa, 272, 30 L.R.A. (N.S.) 1184, 128 N. W. 389; Williams Bros. v. Young, 46 Iowa, 140; Huntington v. Risdon, and Armstrong v. Armstrong, supra.

On that date the garnishee did not owe anything that was either due at that time or was certain to become due at any future time. Could he have been discharged by paying a sum to the sheriff on that date under Code, § 12,167? How much would he have had to pay on the date of garnishment to be exonerated?

The foregoing and other similar suggestions only serve to illustrate the patent fact that on the date of the

garnishment there was no "debt" from O. J. Moore to Hannah Moore that was either "due" or certain to ever "become due." The lia

bility to ever pay anything whatever rested wholly on the contingency of Hannah being alive at some date in the future. If a party agrees to pay a sum to another on the date of the marriage of the other party, it could not well be maintained that a garnishable debt "to become due" existed at any time before the date of marriage if that ever occurred. If one promises to pay a sum only when another shall attain a certain age, there then is no "debt to become due," because the contingency may never happen. Many illustrations of contingent liability could be cited. Such contingent obligations, however, do not create a "debt to become due," for the contingency may never occur, and hence a binding obligation to pay may never arise.

The case of Ottumwa Nat. Bank v. Norfolk, 185 Iowa, 1334, 172 N. W. 3, is not in conflict with the conclusion that at the time of garnishment there was no debt to become due in the instant case. In the Ottumwa Case a beneficiary of an insurance policy had brought suit against the insurance company, claiming that the insured was dead. At the commencement of the action the insured was presumptively dead. The parties entered into a stipulation whereby the insurance company paid to to a trustee the amount of the policy to be held by the trustee for a period of ten years, and then it was to be paid to the beneficiary unless the insurance company should then be able to prove affirmatively that the insured was in fact alive. The only contingency was in the nature of a defeasance. The amount was fixed and was in fact paid to the trustee. It belonged to the beneficiary subject only to a condition subsequent. The court refused to discharge the garnishee and continued the garnishment proceedings. Referring to the fund in the hands of the trustee, we said: "We think the principal defendant herein, Norfolk, was the beneficial owner, subject, however, to a condition subsequent.

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