his attorney to defend the action, in which a judgment was rendered against him. On February 15, 1883, Jesse Gaut, and also the railroad company, appeared before the justice, and presented the statutes of Missouri, claiming that the wages garnished were exempt. After the order of February 15, 1883, was made for the garnishee to pay the $20 into the hands of the justice to apply upon the judgment and costs, nothing further was done towards the enforcement of this order until January 14, 1884, when the justice made another order for the railroad company, as garnishee, to pay the money in satisfaction of the judgment and costs. The railroad company refusing to comply with the order, the plaintiffs filed their bill of particulars on March 7, 1884, asking judgment in their favor and against the defendants for the $20 garnished, with interest from February 15, 1883, and also for all costs. The railroad company filed its answer on April 12, 1884. Judgment was rendered against the company on April 14, 1884, for $25.94, and costs taxed at $5.80; the case was then appealed by the railroad company to the district court. On June 24, 1884, Jesse Gaut presented his motion for leave to be made a defendant, and to file his answer. This was granted, and his answer filed. Ever since he has continued to be vigilant in claiming his exemption.

Upon the oral evidence and the records before the justice of the peace and the district court we do not think that there is any evidence to support the finding that Gaut did not desire any further litigation, or was willing that the sum of $20 should be applied in satisfaction of the judgment rendered before the justice of the peace. The most that can be said is that he supposed when the railroad company retained $20 they had paid it to Gough & Linley; but when he found this was not the case he was anxious to claim all his wages as exempt. "Until the right of exemption is waived or lost by some unequivocal act or declaration of the debtor, it remains with him, and any of his property which is included within the terms of the statute is beyond the reach of the officer and his process." Rice v. Nolan, 33 Kan. 28; S. C. 5 Pac. Rep. 437. Counsel for plaintiffs below suggest that as all the evidence is not preserved the findings of the court are conclusive. The record, however, shows that upon the disputed findings of fact all of the evidence that was offered is embraced therein.

It is the claim of defendants below that the judgment of the district court was rendered upon the finding that Gaut was not a resident of this state at the time of the garnishment. If such was the ruling it was erroneous. "Under the statute the earnings of a debtor for his personal services, at any time within three months next preceding the attempt to subject such earnings to the payment of his debts, are exempt from such payment, if it be made to appear by the debtor's affidavit, or otherwise, that such earnings are necessary for the useof his family, supported wholly or partially by his labor; and no dis

tinction is made by the statute between residents and non-residents, or between debts created in Kansas and debts created elsewhere; and the weight of authority seems to be that where the statutes do not make any distinction that no such distinction exists; that if the statutes do not restrict the exemption of property for the payment of debts to residents, or to some other particular class of persons, the courts have no authority to make such restriction, and the statute will apply to all classes, non-residents as well as residents." Railway Co. v. Maltby, 34 Kan. ; S. C. 8 Pac. Rep. 235; Zimmerman v. Franke, 34 Kan. ; S. C. 3 Kan. Law J. 29, and 9 Pac. Rep. 747.

In Railroad Co. v. Thompson, 31 Kan. 180, S. C. 1 Pac. Rep. 622, the case was discussed and decided whether the exemption laws of Nebraska have force in this state, the trial judge remarking that "the showing was insufficient to sustain the exemption under the laws of Kansas;" and in the conclusion of his opinion said: "The garnishee has not made out a case of exemption for its creditor here under our statute, which governs us, and which we must follow in preference to the Nebraska statute." If it be claimed that the judgment rests upon the adjudication of the justice refusing to set aside the garnishment and discharge the fund as exempt, it is sufficient to say that such an order is not conclusive. Such a ruling is neither a judgment nor a final order, and is not reviewable by proceedings in error. Neither the railroad company nor Gaut could successfully have instituted proceedings in error in the district court. Zimmerman v. Franke, supra; Miller v. Noyes, 34 Kan. —-; S. C. 7 Pac. Rep. 602; Board of Education v. Scoville, 13 Kan. 32; Phelps v. Railroad Co., 28 Kan. 169; Mull v. Jones. 33 Kan. 112; S. C. 5 Pac. Rep. 388.

We think there is nothing whatever in the suggestion that Gaut was not properly a party to this action in the district court, or that the exemption had been lost by lapse of time. The last finding of the court shows that the money garnished was for the earnings of Gaut for his personal services for the railroad company within less than three months next preceding the garnishment proceeding, and that the earnings were and are necessary for the maintenance and use of his family, who were and are supported wholly by his labor.

The judgment of the district court will be reversed, and the cause remanded for a new trial.

(All the justices concurring.)

NOTE.

A debt due from one who may be sued in this state to a non-resident of this state, for services performed in the state of his residence, may be garnished in a suit instituted against him in the courts of this state, personal service or service by publication having been duly made on him, although his salary has always been paid in the state where he lived, and would have been exempt by the laws of that state. Mooney v. Union Pac. Ry. Co., (Iowa,) 14 N. W. Rep. 343; Öberfelder v. Union Pac. Ry. Co., (Iowa,) 14 N. W. Rep. 255.

The exemption laws of another state or territory cannot be pleaded or relied upon as a defense by either the garnishee or the judgment debtor in a proceeding in Iowa.

Broadstreet v. Clark, (Iowa,) 22 N. W. Rep. 919. The court say: "We regard it as the settled rule in this state that the exemption laws of another state or territory cannot be pleaded or relied on as a defense by either the garnishee or judgment debtor;" citing Newell v. Hayden, 8 Iowa, 140; Leiber v. Union Pac. Ry. Co., 49 Iowa, 688; Mooney v. Union Pac. Ry. Co., (Iowa,) 14 N. W. Rep. 343; and Burlington & M. R. R. v. Thompson, (Kan.) 1 Pac. Rep. 622.

It was held in Albrecht v. Treitschke, (Neb.) 22 N. W. Rep. 418, that where a judgment creditor procures the exempt wages due a laborer to be taken by garnishee process, and applied to the payment of his judgment, a cause of action arises in favor of the judgment debtor against the creditor for the amount of such wages wrongfully ap propriated, unless the right of exemption is waived by the debtor.

(35 Kan. 10)

MANN v. BURT and others.

Filed March 5, 1886.

1. RAILROAD COMPANY-CONSTRUCTION-CONTRACTOR'S BOND.

Where a railroad company takes from the contractor engaged in the construction of its road a good and sufficient bond, such as is required by chapter 136 of the Laws of 1872, it cannot be held liable for the debts due from the contractor for labor and material which go into the building of such road. The filing of the bond in the office of the register of deeds is not a condition precedent to immunity from such liability.

2. SAME-TEAMSTER A LABORER.

A teamster employed by a contractor in the construction of a railroad is a laborer within the meaning in which that term is used in the statute above mentioned.

3. SAME-DEBTS DUE FOR USE OF TEAMS.

The railroad company cannot be held liable for the debts due from the contractor for the labor of teams in constructing the road, whether such labor was used in connection with the services of the person furnishing the same or not. 4. SAME LIABILITY OF COMPANY.

Where a teamster and his team are employed by the contractor for a certain price per day for the joint labor of both, and no agreement is made respecting the price or value of the personal services of the teamster, the debt will constitute a single and indivisible demand for which the railroad company is not chargeable.

Error from Cowley county.

Action brought in the district court of Cowley county, under the provisions of chapter 136 of the Laws of 1872, in which the plaintiff alleged that the defendant company had failed to take the bond from the contractor who constructed a portion of its road, and he asked that the company be held liable for certain labor performed for the contractor upon the road, and for which he had not paid. The answer of the railroad company was a general denial, to which was added the following defenses:

"(2) And for a second and further defense to the action of the plaintiff this defendant avers that on the twentieth day of August, A. D. 1879, it en tered into a contract with the defendant Bernard Corrigan for the construc. tion of its road-bed through the county of Cowley, state of Kansas, and thereafter required and took from said defendant Bernard Corrigan the bond in such cases required and prescribed by law, a true copy of which said bond is hereto attached marked Exhibit A,' and made a part of this the second cause of defense in this answer contained; which said bond, and the security thereon signed and therein named, the defendant avers was at the date thereof, and ever since has been and now is, good and sufficient in every particular. [The exhibit attached was a contractor's bond in the usual form.]

"(3) And for a third and further defense to the action of the plaintiff this defendant avers that if any contract ever existed between the defendant Bernard Corrigan and the J. D. Burt in the petition of the plaintiff mentioned, in form and substance as in and by said petition set forth and alleged; and if the several persons mentioned in the said petition ever were employed or performed labor in the construction of this defendant's line of railroad, as in said petition alleged, said persons, and each and all thereof, were employed by said Burt in the capacity of foreman, clerks, time-keepers, and teamsters in connection with teams of horses or mules owned or controlled by them, respectively, and under such employment, and in pursuance thereto, performed any and all such labor as such foreman, clerks, time-keepers, and teamsters owning or controlling such teams respectively, and not otherwise, and at and for an agreed price per day for the services so rendered, which price, so far as it related to said teamsters and teams, was based upon and comprised the value of the joint labor of said teamsters and their said team or teams per day, or by the job, as the case might be, and not otherwise."

The plaintiff demurred to each of the second and third defenses, which demurrer was heard by the court, and overruled. This ruling is assigned for error here.

Jennings & Troup, for plaintiff in error.

W. P. Hackney, for defendants in error.

JOHNSTON, J. The question raised by the demurrer to the second defense is, upon what contingency does the liability of the railroad company for the debts of the contractor who constructed its road depend? It is alleged that the company took from the contractor a good and sufficient bond,-such as is provided for in chapter 136 of the Laws of 1872,—but it is not averred that the bond was filed by the railroad company in the office of the register of deeds of the county where the work was done. The omission of this averment is the ground of demurrer relied upon by the defendant. On the part of the plaintiff it is urged that before the railroad will be exempt from liability for the debts of the contractor it must not only have taken a bond, but it must also have filed the same in the office of the register of deeds; while the claim of the company is that, to escape such liability, it was only required to take a good and sufficient bond, and this it alleges it had done. We agree with the defendant. The statute is so written. Its terms are plain and unmistakable. The language fixing the liability of the railroad is:

"And if any such railroad company shall fail to take such bond, such rail.oad company shall be liable to the persons herein mentioned to the full extent of all such debts so contracted by such contractor." Section 1, c. 136, Laws 1872.

Thus, it will be seen that the filing of the bond is not a condition precedent to be performed by the railroad company before it can claim immunity from the payment of the debts mentioned in the statute. It is true that in a preceding part of the statute it is made the duty of the company to file the bond in a public office, and we might agree with the plaintiff that it would add much to the convenience of persons who desire to avail themselves of the benefit of the bond to have

required it to be filed before the company would be freed from liability; but when the legislature came to fix the condition upon which the liability of the company should arise it provided that it should be liable if it failed to take a bond, and not if it failed to take and file the same, and the inconvenience occasioned, or the impolicy of the statute, are not considerations for the court. We are reminded that the statute should be construed so as to advance rather than defeat the remedy intended by the legislature, but we must also remember that it is a statute imposing an additional liability under which it is sought to make the company responsible for a debt which it never contracted, and we have before decided that "such a statute should never be extended beyond the fair import of its terms." Railway Co. v. Baker, 14 Kan. 563. The failure to require the bond to be filed, it is true, is an inconvenience, but it does not thwart the purpose or defeat the remedy intended by the legislature. The debtors are secured either by the bond or by the company. If a good and sufficient bond has been taken, the responsibility of the company ceases; and that it will conceal the bond, or the fact that it had been taken, from the persons interested, is an unlikely supposition, as it would be against its own interest, and would probably tend to subject it to embarrassment and litigation, if for any reason the company should fail to file the bond, or, upon request to produce or make known what it was, the parties interested could, by taking the proper legal steps, obtain copies thereof, or compel its production. However, the legislature has expressly stated, in language not open for interpretation, the conditions upon which the liability of the company depends, and the courts cannot add to them. We think the demurrer was rightly overruled.

In the third cause of defense it is alleged that the persons for whose services the action was brought were employed in the capacity of foreman, clerks, time-keepers, and teamsters in connection with their teams. It is settled by a decision of this court that persons in the employ of a contractor as foreman, clerks, and time-keepers are not laborers in the sense in which that term is used in the statute, and therefore not within its protection. Missouri, K. & T. Ry. Co. v. Baker, supra. None of the terms employed in the statute are broad enough to include persons who merely furnish one or more teams to work for the contractor. The persons who fall within its protection are enumerated and are "laborers, mechanics, and material-men, and persons who supply such contractor with provisions or goods of any kind." The railroad company, therefore, cannot be charged with such labor, even though it be given in connection with the personal services of the owner of such teams. Balch v. Railroad Co., 46 N. Y. 521; Groves v. Railroad Co., 57 Mo. 304. It is different, however, regarding the personal services of the teamster. The work performed by him in driving the team, handling a plow, and loading and unloading scrapers and wagons, is such as to constitute him a "laborer" within v.10p.no.1--7