Lay v. Hammond

THE COURT.

This is an appeal from a judgment of the lower court, granting to petitioner a peremptory writ of mandate against respondent to compel respondent, as auditor of the county of San Diego, to pay to petitioner salary warrants due her from said county for services rendered by her as a teacher. The sole question involved is whether the salary of a teacher in the public schools is subject to garnishment under the provisions of section 710 of the Code of Civil Procedure, as amended in 1929. (Stats. 1929, chap. 634, p. 1047.)

The facts are uncontroverted. In October of 1929, one Fred Betcher obtained a judgment for $605.71 against petitioner, a teacher in the city schools of San Diego, employed under a regular teacher’s contract. In March of 1930 Betcher filed with respondent auditor a certified copy of the judgment, together with an affidavit stating the exact amount due thereon, for the purpose of garnishing the salary warrant due petitioner on April 1, 1930. Subsequently, in like manner, Betcher filed with respondent certified copies of the judgment and affidavits for the purpose of garnishing the salary warrants due petitioner on May 1st and June 1st, respectively. The respondent auditor, purporting to act under the provisions of section 710 of the Code of Civil Procedure, withheld the salary warrants due petitioner on April 1st, May 1st and June 1st. On May 20, 1930, petitioner instituted this proceeding for a peremptory writ of mandate to require respondent to de

[667]

liver to her, her salary warrants for March and April, 1930. No question of the sufficiency of Betcher’s compliance with .the provisions of section 710 is presented, petitioner admitting that all of the provisions of that section have been complied with. Respondent generally demurred to the petition, which demurrer was overruled. Inasmuch as respondent failed to answer, the trial court entered judgment in favor of the petitioner, whereupon respondent auditor prosecuted this appeal.

The question thus presented is whether the salary of a school-teacher, a public employee, may be garnished by a judgment creditor under the provisions of section 710 of the Code of Civil Procedure, since its amendment in 1929. Before 1929 the rule was well settled that section 710, as it then read, permitted attachment of the salaries of all public employees with the exception that salaries of constitutional officers were not attachable.