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Byers v. Comer

Supreme Court of Arizona

June 1, 1937

WILLIAM BYERS and THE BANK OF ARIZONA, Appellants,
v.
LEE COMER, Appellee

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.

Messrs. Favour & Baker and Mr. A. M. Crawford, for Appellants.

Mr. Will E. Ryan, for Appellee.

OPINION

[50 Ariz. 9] ROSS, J.

This question for decision is whether or not an assignment of his salary by a public officer of a county before he has earned it is valid as against a garnishing creditor of such officer. This question is here because of the following facts:

William Byers, the judgment debtor, was at the time of this proceeding chairman of the board of supervisors of Yavapai county. On January 31, 1935, for $1 and other valuable considerations, he assigned his official salary due and to become due to the Bank of Arizona and gave to such bank a power of attorney to collect such salary during the rest of his term, his salary as such chairman of the board of supervisors being $1500 a year, or $125 a month, payable semimonthly. Lee Comer, who had a judgment against Byers for the sum of $707.23 sued out a writ of garnishment against Yavapai county. The county answered the writ stating that Byers was chairman of its board of supervisors; that his salary was $125 a month and that the county was, at the time of service, [50 Ariz. 10] indebted to him, or his assignee, the Bank of Arizona, for the first thirteen days of August, 1935, or in the sum of $54.18. The bank intervened and claimed the salary under its assignment. The court rendered judgment in favor of the garnishment creditor, Comer, for $54.18 and directed the county treasurer to pay such sum to Comer. The bank and Byers have appealed.

The appellee suggests that the amount involved is only the sum of $54.18, for which he was given judgment, and for that reason the court, under section 4, article 6, of the Constitution is without jurisdiction of the appeal. Under such provision the jurisdictional amount to give this court the right to hear and determine

Page 672

an appeal is a sum in excess of $200, with some exceptions none of which is here present. The jurisdiction of this court depends, we think, upon the meaning that is to be given the phrase "the original amount in controversy," found in the Constitution, section 4, article 6, supra. If such amount exceeds $200, then this court has jurisdiction. Plaintiff's judgment against defendant Byers was for $707.23, which conclusively establishes that in the main action more than $200 were in controversy.

Our attachment and garnishment statutes are taken from Texas and the courts of that state have repeatedly held that a garnishment proceeding is in aid of the principal action. In King v. Porter, 113 Tex. 198, 252 S.W. 1022, it was decided that the court in the main action had jurisdiction of garnishment proceedings for any amount, however small; that the garnishment was a process in aid of the enforcement of the judgment in the main action, and that jurisdiction of the garnishment proceeding came from the main action. The right of appeal is governed by the original amount in controversy in the main action, [50 Ariz. 11] which in this case was a sum in excess of $200. The court, in the case of King v. Porter, supra, said:

"It is well settled that the jurisdiction in the trial court in proceedings of garnishment is that of the original suit. The question here presented is: Is appellate jurisdiction in garnishment proceedings the same as that of the original suit?

"We think so. A garnishment proceeding is ancillary to and a part of the principal action, and not only must it be brought in the court of the principal action, but when brought after final judgment in the original suit, the court will take judicial knowledge of such judgment. Kelly v. Gibbs, 84 Tex. [143] 148, 19 S.W. [380] 563. Thus its justification and efficacy are grounded in the original action."

We think we have jurisdiction.

The vital question, however, is the validity of the assignment of his salary by Byers to the bank. In Kaminsky v. Good,124 Or. 618, 265 P. 786, 788, wherein the validity of an assignment of his salary ...


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