p. 427Emmet Myers and Others, Respondents, v. Thomas Moran, Appellant, Impleaded with Mrs. Thomas Moran, Defendant.Headnote
Execution against wages — same may issue on judgment obtained before amendment to section 1391 of the Code of Civil Procedure — said section is retroactive.A statute exempting property from execution is not a contract between the State .and the judgment debtor and ’ may be changed by subsequent legislation. Hence, the court may allow execution to issue against wages under section 1391 of the Code of Civil Procedure although the judgment was entered before the amendment to said section which allowed execution against wages.
Said amendment is retroactive and applies to judgments docketed before its passage, for the general rule against retroactive construction does not control a statute affecting a remedy or a rule of procedure affecting a right.
Appeal by the defendant, Thomas Moran, from an order of the County Court of Orange county, entered in the office of the clerk of the county of Orange on the 16th day of January, 1906.
John W. Lyon, for the appellant.
Frank Lybolt, for the respondents.
This appeal is from an order of the County Court of Orange county, denying a motion to vacate an order allowing execution to issue against wages under section 1391 of the Code of Civil Procedure. The appeal is based upon the fact that the judgment was entered before the enactment of the statute. The first point made is that if the statute be construed as retroactive, it impairs the obligation of a contract. A statute of exemption from an execution is not a contract between the State and the judgment debtor. Such an exemption is a gratuity, not a vested right, and it may be changed as circumstances may dictate. (Cooley Const. Lim. [7th ed.] 383 et seq. ; Bull v. Conroe, 13 Wis. 233 ; Harris v. Glenn, 56 Ga. 94 ; Bramble v. State, use of Twilley, 41 Md. 435 . See, too, Morse v. Goold, 11 N. Y. 281 .) It is further said that the language does not unequivocally require a retroactive interpretation. The language of the statute is applicable to existing judgments, and is in furtherance of the remedy for the collection of the debt. In Bronson v.
p. 428Kinzie (1 How. [U. S.] 315), the court, per Taney,’ Ch.. J., say, spebkmg of the State : “ It may, if it thinks proper, direct that .the necessary implements of agriculture, or the tools of the mechanic, or articles of necessity in household furniture, shall, like-wearing apparel, not he liable to execution on'judgments. Regulations of this description have always- been considered, in every civilized community, as properly belonging to the remedy., to be exercised or not by every sovereignty,, according to its own .views of policy and ' humanity.” The general rule against retrospective construction ■ does not control a statute affecting a remedy or the rule of procedure in enforcing--a right. (See
O'Reilly v.
Utah, Nevada & Cal. Stage Co., 87 Hun, 406 , opinion approved in
Isola v. Weber, 147 N. Y. 329 .) In
Morse v.
Goold (supra) an act exempting property from levy and sale on. executions was- held to apply to judgments and executions on debts contracted before as well as after its passage, and the reasoning warrants my conclusion in this case. (See, too,
Matter of Trustees N, Y. P. E. Public School, 31 N. Y. 585 ;
Van Rensselaer v.
Snyder, 13 id. 299.)
The order is affirmed, with ffin dollars costs and disbursements.
Hooker, Gaynor, Rich and Miller, JJ., concurred.
Order of the County Court oí Orange county affirmed, with ten dollars costs and disbursements. - ■