MILBURN v. MILBURN.

MILBURN v. MILBURN.
1932 OK 475
12 P.2d 518
158 Okla. 69
Case Number: 20990
Decided: 06/21/1932
Supreme Court of Oklahoma

MILBURN
v.
MILBURN.

Syllabus

¶0 Appeal and Error--Review of Equity Case--Sufficiency of Evidence.
This court, on appeal in an equity case, will examine and weigh the evidence, but will not reverse the judgment because of the insufficiency of the evidence unless it can be said that it is against the clear weight thereof.

Appeal from District Court, Choctaw County; Geo. T. Arnett, Judge.

Garnishment proceeding by Cora Milburn to secure payment of alimony due from H. R. Milburn. Judgment for plaintiff, and defendant appeals. Affirmed.

I. L. Strange, for plaintiff in error.
R. S. Howe, for defendant in error.

HEFNER, J.

¶1 On March 5, 1927, Cora Milburn obtained a divorce and judgment for alimony in the sum of $ 3,450 against her husband, H. R. Milburn, in the district court of Choctaw county, Okla. The alimony, under the decree, was to be paid in installments of $ 57 per month. Milburn paid the installments regularly, some in excess of the amount due, until July 1, 1928, at which time he defaulted and left a balance due of $ 548.96.

¶2 Milburn was a railroad conductor at the time the decree was rendered and in the employ of the St. Louis & San Francisco Railway Company. Sometime in March, 1929, he left the state and entered the service of that company in the state of Mississippi. On May 2, 1929, Mrs. Milburn caused a garnishee summons to be issued on the railway company to collect a portion of the balance due her on the judgment for alimony. Milburn filed an answer in the garnishee proceedings, in which he alleged that he was a resident of the state of Oklahoma, and that the money garnisheed comprised his current wages and that 75 per cent. thereof was exempt under section 6596, C. O. S. 1921. He further alleged that Mrs. Milburn garnisheed the entire amount due and owing him at that time by his employer, and that she, by reason thereof, forfeited the entire debt, under provisions of section 6596, supra. Mrs. Milburn filed a reply to this answer, alleging that Milburn was a nonresident of the state; that he had left the state permanently and was at the time of the issuance of the garnishee summons a resident of the state of Mississippi; and that the money garnisheed was not exempt. The trial was to the court and resulted in judgment and finding in favor of Mrs. Milburn. The garnishment proceedings were sustained and judgment rendered against the railway company in the sum of $ 90.64.

¶3 The court specifically found that Mr. Milburn, at the time of the issuance of the garnishee summons, was a resident of the state of Mississippi. Milburn, hereinafter referred to as plaintiff in error, has appealed to this court, and contends that the finding of the trial court that he was a resident of the state of Mississippi at the time of the institution of the garnishment proceedings is against the clear weight of the evidence.

¶4 There is some conflict in the evidence, but in our opinion it is sufficient to sustain the finding of the trial court. Plaintiff in error admits that he left the state of Oklahoma in March, 1929, but contends that he intended to return to this state and that his absence from the state was merely temporary in order to try out a job in Mississippi. Ethelbert Milburn, son of plaintiff in error, testified that his father stated that he was leaving the state of Oklahoma and did not intend to return; that he was leaving in order to defeat further payments of alimony to Mrs. Milburn. This witness also testified that plaintiff in error transferred his seniority with the railway company to Mississippi, and that he would lose such seniority in the event he returned to Oklahoma. Other evidence also was offered which tended to show that plaintiff in error had permanently left the state of Oklahoma.

¶5 The finding of the trial court that plaintiff in error was a nonresident of the state at the time of the institution of the garnishment proceedings is not against the clear weight of the evidence, and section 6596, C. O. S. 1921, relied upon by him, is therefore without application.

¶6 The judgment is affirmed.