WILLIE ELVINE, MINDY ELVINE, AND JOSEPH MILLER, FREDERIC B. MILLER AND JOSEPH MASSEY, A PARTNERSHIP D/B/A MIAMI PROVISION COMPANY, APPELLANTS,
v.
PUBLIC FINANCE CO., A FLORIDA CORPORATION, APPELLEE
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The court reversed a default judgment entered against a garnishee where the judgment debtor had timely filed an affidavit claiming exemption of wages from garnishment under Florida law. The court held that the debtor's exemption affidavit, not denied under oath within the statutory period, required termination of garnishment proceedings regardless of any pending default motion.
The default judgment was erroneously entered and must be reversed. A debtor's affidavit for exemption of wages, filed pursuant to statute and not denied under oath within two days, requires cessation of all garnishment proceedings. The statutory exemption for wages applies for the debtor's benefit and must be liberally construed in the debtor's favor, and the default motion cannot override the debtor's exemption rights.
“and if the facts set forth in such affidavit are not denied under oath within two days after service of said notice, the process shall be returned, and all proceedings under the same shall cease.”
Establishes the statutory requirement that garnishment must cease if the debtor's exemption affidavit is not denied under oath within the prescribed period
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Join FLexlaw to unlock all legal intelligencePublic Finance Co. obtained a judgment against Willie Elvine and served a writ of garnishment on Miami Provision Company on May 20, 1966. The garnishe…
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This is an appeal by the judgment debtor, Willie Elvine, and the garnishee, Miami Provision Company, from a default judgment against the garnishee. The question presented is whether the trial court properly entered judgment against the garnishee when there was pending an affidavit by the debtor for exemption of wages from garnishment. The affidavit was made pursuant to § 222.11 Fla.Stat., F.S.A. and was filed IS days before the entry of the judgment appealed. We hold the judgment was erroneously entered and reverse.
The affidavit for garnishment after judgment was filed May 19, 1966, and the writ served May 20th. The garnishee responded with a letter to the Clerk denying the existence of any indebtedness to Elvine. Appellee moved for the entry of a default. *26upon the ground that no answer under oath, as required by § 77.04 Fla.Stat., F.S.A., was filed. This motion came on for hearing on July 7th at which time garnishee tendered to the court an amended answer. On July 8th the following pleadings were filed: (1) motion to dissolve garnishment; (2) affidavit for exemption under § 222.12 Fla. Stat, F.S.A. These pleadings were served upon the garnishor with a notice of hearing for July 20th on the motion to dissolve garnishment.
An order granting default against the garnishee was entered on July 11, and on July 21st an order was entered denying the motion to dissolve garnishment. On the same day the default judgment was entered. It is from this judgment that this appeal is taken.
Appellee urges that as soon as his motion for default was heard it merged with the garnishment proceeding, and therefore the debtor’s affidavit of exemption did not affect the garnishee’s default. This reasoning does not stand when one considers that the motion for default grew out of the garnishment action. The default should fall when grounds are shown for an exemption from garnishment. It is sufficient to point out the language of § 222.12 Fla.Stat., F.S.A., providing for proceedings for exemption of wages from garnishment: “ * * * and if the facts set forth in such affidavit are not denied under oath within two days after service of said notice, the process shall be returned, and all proceedings under the same shall cease.” It should also be noted that the affidavit for exemption was filed one day after the hearing on the motion for default, and three days prior to the order granting default.
The facts set forth in the affidavit were not denied. The affidavit was served upon the “party who sued out the process”. Therefore the appellee, garnishor, was not entitled to proceed further in the action except by filing the statutory denial and seeking trial thereon.
Appellee’s argument that the garnishor should not have the benefit of the affidavit is unavailing.
Its reliance upon the language in Ser-Nestler, Inc. v. General Finance Loan Company, Fla.App.1964, 167 So.2d 230, is misplaced. In that case the contention for the exemption was made by the garnishee. Here we have the affidavit of the debtor.
The exemption is for the benefit of the debtor, and its benefit may only be accorded to him by the statutory termination of the proceedings. Exemption statutes should be liberally construed in favor of the debtor. The very purpose of the statute is to preserve to the unfortunate debtor and his family a means of living without becoming a charge upon the public. See Patten Package Co. v. Houser, 102 Fla. 603, 136 So. 353 (1931); Farland Loan & Savings Co. v. Pittman, 108 Fla. 442, 146 So. 554 (1933); Slatcoff v. Dezen, Fla. 1954, 76 So.2d 792.
Reversed and remanded with directions-to quash the writ of garnishment.
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The Miami Herald Publ'g Co. & John H. Payne v. Payne, 358 So. 2d 541 (Fla. 1978)…the writ of garnishment] shall be returned, and all proceedings under the same shall cease.” The Third District Court of Appeal has previously held that Section 222.12 must be strictly construed in favor of the debtor. Elvine v. Public Finance Co., 196 So. 2d 25, 26 (Fla.3d DCA 1967). “The exemption is for the benefit of the debtor, and its benefit may only be accorded to him by the statutory termination of the proceedings.” We agree,6 from which it follows that all proceedings under the writ of garnishme…
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Killian v. Lawson, 387 So. 2d 960 (Fla. 1980)…Exemption statutes serve the same purpose and should be liberally construed in favor of a debtor so that he and his family will not become public charges. Patten Package Co. v. Houser, 102 Fla. 603, 136 So. 353 (1931); Elvine v. Public Finance Co., 196 So. 2d 25 (Fla. 3d DCA 1967). A wage earner need not reside in the same house with his wife and/or children to remain the head of a family. Instead, it is the obligation to support, and dependency on that obligation, which should control. See McGookey v. Win…
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Barbara A. Mazzella, M.D. v. Boinis, 617 So. 2d 1156 (Fla. 4th DCA 1993)…. 4th DCA 1979) (quoting Wolf v. Commander, 137 Fla. 313, 188 So. 83, 84 (Fla.1939)). The supreme court has held that the exemption is for the benefit of the debtor, and should be liberally construed in the debtor’s favor. Elvine v. Public Fin. Co., 196 So. 2d 25, 26 (Fla. 3d DCA 1967); Killian v. Lawson, 387 So. 2d 960, 962 (Fla.1980). In construing this statute, our first obligation is to give the words used by the legislature their plain meaning. For instance, without any words of limitation, a “child” c…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Morehead v. The First Nat'l Bank of Lake City, 102 Fla. 522 (Fla. 1931)
- Slatcoff v. Dezen, 76 So. 2d 792 (Fla. 1954)
- Ser-Nestler, Inc. v. Gen. Fin. Loan Co. OF Miami Nw., 167 So. 2d 230 (Fla. 3d DCA 1964)
- DeSoto Beach Improvement Co. v. Sias, 102 Fla. 603 (Fla. 1931)
- Patten Package Co. v. Houser, 102 Fla. 603 (Fla. 1931)
- Farland Loan & Sav. Co. v. Pittman, 108 Fla. 442 (Fla. 1933)
- State v. Cornelius, 108 Fla. 509 (Fla. 1933)