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for alimony.

(184 Iowa, 835, 169 N. W. 56.)

to final judgment is not the debt of him against whom -debt-judgment it is rendered. On the contrary, the great weight of authority is decidedly the other way. Speaking of the entry of a decree for alimony, the Supreme Court of the United States says: "When this is done it becomes a debt of record." Barber v. Barber, 21 How. 595, 16 L. ed. 230. Speaking of absolute and limited divorces, the Massachusetts court says: "The judgment for alimony in either case creates a debt of record in favor of the wife." Chase v. Chase, 105 Mass. 388. A debt is something due or payable from one person to another, and may be created by contract or judgment. Summit Silk Co. v. Kinston Spinning Co. 154 N. C. 421, 70 S. E. 820, Ann. Cas. 1912A, 897; Arbaugh v. Shockney, 34 Ind. App. 268, 71 N. E. 232, 72 N. E. 669; Anniston v. Hurt, 140 Ala. 394, 103 Am. St. Rep. 45, 37 So. 220; Lothrop v. Parke, 202 Mass. 104, 88 N. E. 666; Ex parte Kinsolving, 135 Mo. App. 631, 116 S. W. 1071; Re Van Orden (D. C.) 96 Fed. 88; Mertz v. Berry, 101 Mich. 32, 24 L.R.A. 789, 45 Am. St. Rep. 379, 59 N. W. 445. Our own cases are quite in harmony with this view. See Whitcomb v. Whitcomb, 52 Iowa, 718, 2 N. W. 1000. In this last-cited case, the wife obtained a general judgment for alimony and afterwards sought to enforce it against the husband's homestead. This was denied, the court saying: "The judgment is but a debt, and the plaintiff thereunder is not entitled to precedence or greater rights than would be the holder of any other judgment." See also Byers v. Byers, 21 Iowa, 268. Indeed, we think we need look no further than to the statute itself to see that the words "debt" and "debtor" are used in their more general and less technical sense, and that the statute provides for exemption from execution issued upon every and any general judgment against the head of a family for the payment of money. In Code, § 4008, which is the section providing the general list of exemp

11 A.L.R.-8.

tions, the word "debtor" is repeatedly employed. The exemptions are expressly made in favor of the "debtor," if a resident of the state. It is the "debtor's" wearing apparel, trunks, shotgun, family Bible, portraits, church pew, burial lot, tools, implements, team, etc., which are secured from seizure under execution or attachment, and if the appellant's theory be correct that a judgment. rendered against a litigant upon any other claim than that of a debt by contract, in its restricted technical sense, is not a debt within the meaning of this statute, then the door is opened to stripping the impoverished debtor and his family of every earthly possession, save perhaps the clothes upon their backs, in favor of any person who may happen to recover judgment against him upon any cause of action not originating in contract. We feel very sure that such is not the legislative intent. One against whom a judgment for the payment of money is rendered is universally known and spoken of as a "judgment debtor," and the claim against him is recognized as a "judgment debt." It is, to use the language of the cases already cited, a "debt of record," or, as called by some, "a judicial debt of record." It is a debt-a binding obligation to pay a stated sum of money fixed by judicial determination. If before judgment the plaintiff's claim was unliquidated, and the obligation to pay was imperfect, that condition ceased with the judgment entry. What was before uncertain is now certain. A writ of execution is nothing less or more than a process by which such debt may be enforced against the judgment debtor's property, if any he has, which is subject to seizure, and property so levied upon is taken for that purpose, i. e., for the payment of his debt. The protection against such seizure which the Statute of Exemption provides is in favor of residents of the state who are married and are heads of families. Mr. Bouvier says that debts arise or are proved by matters of record (as judgment debts), by bonds, and by simple con

tract. "The word 'debt' is of large import, including not only debts of record or judgments, and debts by specialty, but also obligations arising under simple contract. To a very wide extent, and in its popular sense, it includes all that is due to a man under any form of obligation or promise." Gray v. Bennett, 3 Met. 526. "Debt" means a liability to pay a sum certain, and it makes no difference how the liability arises, whether by contract or whether it be imposed by law without contract. Rhodes v. O'Farrell, 2 Nev. 61. See also Webster's Int. Dict.; Rapalje & L. Law Dict. The Constitution of North Carolina provides for the exemption of homesteads from sale under execution for any debt, and this has been held to include exemption from levy under execution on a judgment rendered in an action ex delicto. Dellinger v. Tweed, 66 N. C. 210. The proposition would also seem to have been finally settled for this court as far back as the case of Johnson v. Butler, 2 Iowa, 535-545. There the plaintiff sued at law upon a judgment rendered in Illinois in an action ex delicto. The suit was brought and an attachment sued out in this state, on the theory that the action on the judgment was ex contractu. The trial court ruled in effect that the action upon the judgment must be treated as partaking of the nature of the original action, that is, ex delicto. This court overruled the trial court, saying: "But when a judgment has been recovered for tort, it then is fixed and certain. It is a debt as much as if it were recovered upon a promise." The same proposition is reiterated in Warner v. Cammack, 37 Iowa, 642.

Other authorities of like character could be multiplied quite indefinitely. If the plaintiff were now standing in court, asking an allowance of alimony, it could well be admitted that her action in that respect was not ex contractu, or rather that such claim is not a debt in the restricted meaning of that word.

And yet marriage is a civil contract between the parties, a contract

which implies an obligation for support, and it is in recognition of such implied contract that alimony is allowed. It remains unliquidated, however, until the court has fixed it by judgment, but thereafter it would seem that

Contract

alimony.

it must be regarded judgment for
as a debt by con-
tract as well as by judgment.

Much is said in argument of the injustice of such results in cases like the one at bar, and that defendant ought not to be allowed to clothe himself with such right of exemption by marrying again. If it should be admitted that the statute could well have been made to accord with appellant's contention of absolute justice, it is sufficient to say that it was not so made. The marriage relations of the parties were severed at the option of the plaintiff. It was in accordance with her prayer that the divorce was granted, and she was given her freedom from the bonds of matrimony with a general judgment for a specified amount of alimony. She ceased to be a member of his family, and the only relation thereafter existing between them was that of judgment creditor and judgment debtor, and as a judgment creditor she became vested with the same rights to enforce collection of her claim which the law gives to all other creditors of that class.

It is not to be overlooked that the Exemption Laws are not intended simply for the protection of the debtor, but primarily for the protec- purpose of laws. tion and support of

Exemption—

his family, and to that end the statute will be liberally construed. The defendant is the head of a family of which the plaintiff is not a member. The woman who married him is his lawful wife, and it would be a law of at least doubtful justice which would deprive her of the protection of the statute for the benefit of the former wife, who, in accepting a general judgment in her favor, must be held to have impliedly consented to take it subject to all legal limita

(184 Iowa, 835, 169 N. W. 56.)

tions upon her right to enforce it. The statute, so far, at least, as relates to the exemption of the debtor's earnings, is too clear and certain to permit of construction. To repeat, the defendant is a resident of the state, a married man, and the head of a family, and is, therefore, within the literal description of the exempt class. The statute provides no exception from its terms. The earnings garnished were within the ninety-day period. The trial court could not have done otherwise than it did without repealing the statute by judicial construction, or by ingrafting thereon an exception for which the legislative language affords no foundation whatever.

The judgment appealed from is affirmed.

Preston, Ch. J., and Evans and Gaynor, JJ., concur.

Salinger, J., dissenting (October 25, 1918):

I. In my opinion, the fact that the statute gives exemption to no one but a "debtor" does not decide this case. That none but debtors have an exemption is a limitation upon who may claim exemption, rather than a declaration that, all debtors may claim it. I think that all accomplished by limiting exemption rights to "debtors" is that, if an alimony judgment is not a "debt," there is no exemption as to such a judgment, and that using the word "debtor" does not settle whether such judgment is or is not a debt. If it is not a debt, then, as exemptions bar nothing but the collection of "debt," there is here no exemption.

Concede it is a general rule that a judgment is "a debt of record," no matter what the basis of the judgment is, yet such concession does no more than meet one of the arguments of appellant, to wit, that "debt" is created by contract only. But, though a judgment is ordinarily "a debt of record" without reference to its basis, the courts may look into the record behind the judgment to ascertain whether it is an allowance of alimony. Wetmore

v. Markoe, 196 U. S. 68, 49 L. ed. 290, 25 Sup. Ct. Rep. 174, 2 Ann. Cas. 265; Boynton v. Ball, 121 U. S. 457, 30 L. ed. 985, 7 Sup. Ct. Rep. 981. It is permitted to show that the judgment itself lacks some essential attribute of "debt." One such attribute is certainty as to amount and maturity. The order at bar provides a monthly allowance. The total and the maturity depend upon how long appellant shall live, when, if at all, she remarry, and how long the minor child shall live. Thus, both amount and maturity are uncertain. It is held in Dunbar v. Dunbar, 190 U. S. 340, 47 L. ed. 1084, 23 Sup. Ct. Rep. 757, that a discharge in bankruptcy is no bar to enforcing an agreement to pay an annuity to a divorced wife during her life, or until she remarries, because there is a substantial impossibility of estimating the value of the contingency of a remarriage. Unlike most judgments, certainty is lacking, because the alimony order remains in court, and is subject to being canceled or changed at any time. Wetmore v. Markoe, supra; Barclay v. Barclay, 184 Ill. 375, 51 L.R.A. 351, 56 N. E. 636; Audubon v. Shufeldt, 181 U. S. 575, 45 L. ed. 1009, 21 Sup. Ct. Rep. 736; Andrew v. Andrew, 62 Vt. 495, 20 Atl. 819. In the Audubon Case, the Supreme Court of the United States approves Alexander v. Alexander, 13 App. D. C. 352, 45 L.R.A. 806, in holding that "the allowance of alimony is not in the nature of an absolute debt. It is not unconditional and unchangeable. It may be changed in amount even when in arrears, upon good cause shown to the court having jurisdiction."

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99 Am. St. Rep. 119, 31 So. 248; Barclay v. Barclay, 184 Ill. 375, 51 L.R.A. 351, 56 N. E. 636; Ex parte Grace, 12 Iowa, 208, 79 Am. Dec. 529; note in Ann. Cas. 1913E, 1087, and cases; Bates v. Bates, 74 Ga. 105; Mahoney v. Mahoney, 59 Minn. 347, 61 N. W. 334; Lockwood v. Krum, 34 Ohio St. 1. The allowance may be enforced by proceedings in contempt, and the recalcitrant punished by fine and imprisonment. In Foster v. Foster, 130 Mass. 189, the court held that "a husband may be lawfully arrested on an execution issued upon a decree for alimony." In England "the court may require him to give security for its payment," or "direct him to make a transfer of money to a trustee for the convenient payment to the wife." Ringrose, Marr. & Div. p. 26. Of course, no court can do this in giving a naked judgment for debt, or in enforcement of such a judgment.

(b) Such a judgment is not a provable debt within the meaning of the Bankruptcy Act (Act July 1, 1898, chap. 541, 30 Stat. at L. 544, Comp. Stat. §§ 9585-9656, 1 Fed. Stat. Anno. 2d ed. p. 509; 1 Loveland, Bankr. 594 to 596, 612 to 614; 5 Cyc. 397, and cases; Audubon v. Shufeldt, 181 U. S. 575, 45 L. ed. 1009, 21 Sup. Ct. Rep. 735; Dunbar v. Dunbar, 190 U. S. 340, 47 L. ed. 1084, 23 Sup. Ct. Rep. 757; 8 Am. & Eng. Enc. Law, 2d ed. 995, 999; Bankruptcy Act, 1883; Wetmore v. Markoe, 196 U. S. 68, 49 L. ed. 390, 25 Sup. Ct. Rep. 172, 2 Ann. Cas. 265.

(c) Though the courts will not subject the homestead to an ordinary debt, they do subject it to the satisfaction of an allowance for alimony. Winter v. Winter, 95 Neb. 335, 50 L.R.A. (N.S.) 697, 145 N. W. 710; Blankenship v. Blankenship, 19 Kan. 159; Daniels v. Morris, 54 Iowa, 371, 6 N. W. 532, distinguishing the Byers Case, 21 Iowa, 268.

(d) In Tully v. Tully, 159 Mass. 91, 34 N. E. 79, pension money was subjected to an alimony judgment, though the Federal Exemption Stat

ute was invoked. Why, with reference to exemptions, pension money differs from earnings, is not readily perceivable.

(e) The authorities hold enforcement of such award is not the collecting of a debt, but a sequestration, akin to specific performance decree and to partition; that, in analogy to marriage settlements, alimony is a setting aside of part of the joint estate for the purpose of avoiding the family becoming a public charge. Daniels v. Morris, 54 Iowa, 371, 6 N. W. 532; Winter v. Winter, supra; Cochran v. Cochran, 42 Neb. 612, 60 N. W. 942; Anderson v. Norvell-Shapleigh Hardware Co. 134 Mo. App. 188, 113 S. W. 733; Earle v. Earle, 27 Neb. 277, 20 Am. St. Rep. 667, 43 N. W. 118. This categorical formulation, it seems to me, conclusively demonstrates that a judgment ordering a payment for the support of wife and child neither is, nor is it based upon, a "debt." But the reasoning of the cases cited is more convincing than any summary of their holdings.

1b. The argument that the obligation to support wife and child "is of the nature of an ordinary indebtedness, and that the decree [ordering such payment] in no way differs from an ordinary decree for the payment of money," is said in Andrew v. Andrew, 62 Vt. 495, 20 Atl. 819, to be an erroneous view. In Barclay v. Barclay, 184 Ill. 375, 51 L.R.A. 351, 56 N. E. 636, and Wightman v. Wightman, 45 Ill. 167, it is held that the decree may be enforced by attachment for contempt because the allowance is not a debt, and in the Wightman Case it is said that this is so because prohibition of imprisonment for debt refers to an obligation founded upon contract. It is ruled in Ex parte Perkins, 18 Cal. 60, that this allowance is not technically a debt, that the husband owes the wife no specific amount of money, and that the judgment, instead of evidencing a debt, is the making definite an imperfect obligation,-that of support—is a compelling the husband to perform a

(184 Iowa, 835, 169 N. W. 56.)

duty. And Adams v. Adams, 80 N. J. Eq. 175, 83 Atl. 190, Ann. Cas. 1913E, 1083, declares that these holdings are sustained by the great weight of authority, and upon very full investigation I have found no dissent, except in Nebraska and Missouri.

The enforcement of such a decree or award may not be had at law-is not suable at law-and resort must be had to the chancellor to enforce the award. Audubon v. Shufeldt, 181 U. S. 575, 45 L. ed. 1009, 21 Sup. Ct. Rep. 735; Andrew v. Andrew, supra; Nary v. Braley, 41 Vt. 180; Allen V. Allen, 100 Mass. at 374; Wetmore's Case, 196 U. S. 68, 49 L. ed. 390, 25 Sup. Ct. Rep. 172, 2 Ann. Cas. 265. Its enforcement is in the nature of a decree compelling specific performance of the obligation of the husband to support wife and family. "Alimony does not arise from any business transactions, but from the relation of marriage. It is not founded on contract, express or implied, but on the natural and legal duty of the husband to support the wife." Audubon v. Shufeldt, supra, approved in the Wetmore Case, supra. It is a penalty imposed for a failure to perform a duty. Barclay v. Barclay, 184 Ill. 375, 51 L.R.A. 351, 56 N. E. 636. The policy of law imposed this obligation upon the husband. Wetmore v. Markoe, 196 U. S. 68, 49 L. ed. 390, 25 Sup. Ct. Rep. 174, 2 Ann. Cas. 265. To the same effect is Romaine v. Chauncey, 129 N. Y. 566, 14 L.R.A. 712, 26 Am. St. Rep. 544, 29 N. E. 826. In reasoning why such an award is not within the prohibition of imprisonment for debt, it was said in State ex rel. Cook v. Cook, 66 Ohio St. 566, 58 L.R.A. 625, 64 N. E. 567: "It seems manifest that, so far as the obligation of the husband enters into the consideration and affords the basis for the court's action, it is not a debt in the sense of a pecuniary obligation. It arises from a duty which the husband owes as well to the public as to the wife, but it is not upon any specific contract. . . . The liability

originates in the wrongful act of the husband, against the consequences of which the public as well as the wife has the right to be protected." The decree is an admeasurement by which the court makes specific a general duty to support, created by the marital relation and by public policy. Audubon V. Shufeldt, supra; Daniels v. Lindley, 44 Iowa, 567; Romaine v. Chauncey, 129 N. Y. 566, 14 L.R.A. 712, 26 Am. St. Rep. 544, 29 N. E. 826; Fickel v. Granger, 83 Ohio St. 101, 32 L.R.A. (N.S.) 270, 93 N. E. 527, 21 Ann. Cas. 1347; State ex rel. Cook v. Cook, supra; Noyes v. Hubbard, 64 Vt. 302, 15 L.R.A. 394, 33 Am. St. Rep. 928, 23 Atl. 727. And it is held in Winter v. Winter, 95 Neb. 335, 50 L.R.A. (N.S.) 697, 145 N. W. 709, that a court of equity will compel the performance of marriage obligations.

Another reason for holding that an alimony allowance is not a debt is, in essence, that the judgment of the court is a sequestration and division of the property made on a consideration of the circumstances of the family. See Daniels v. Morris, 54 Iowa, 369, 6 N. W. 532. It is setting aside money of the marital partnership to be devoted to the support of the wife. Ex parte Perkins, supra. The allowance bears some analogy to marriage settlements. It is a sequestration, rather than a judicial order, making the husband the debtor of his wife and children. According to Cochran v. Cochran, 42 Neb. 612, 60 N. W. 942, the enforcement of the order is an invoking of the general equity powers of the court to appropriate property of a nonresident within the jurisdiction to the maintenance of the wife and child. Mahoney V. Mahoney, 59 Minn. 347, 61 N. W. 334, holds that an allowance of alimony to the wife out of the property of the husband is a sequestration, and that, "in providing for the division and adjustment of property in case of divorce, the law proceeds upon the theory that the wife has an interest in the property of her hus

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