The opinion
Wiley, J.,
concurring. I concur in the judgment, but do not concur with that portion of the opinion which states that R. C. 3113.21 is substantially and in essence a garnishment statute. I do concur in the definition of the word “garnishment,” and have no quarrel with the legal citations set forth, except the case of
McClain
v.
McClain
(1971), 26 Ohio App. 2d 10 , wherein the court referred to the provisions of R. C. 3115.23 (now R. C. 3114.21) as “the garnishment provisions.” A garnishment is a form of an attachment and there can be no attachment of property which is not in existence; an attachment will not lie for unearned wages. Cf.
Union Properties, Inc.,
v.
Patterson
(1944), 143 Ohio St. 192 ; R. C. 2715.19 and R. C. 2715.29;
Martin
v
Gayle
(1858), 13 Ohio Decisions Reprint 54. See, also,
Garnishment in
Ohio:
Where is it now,
32 Ohio St. L. J. 856 (1971), and annotation, 56 A. L. R. 601, 629-634.
R. C. 3113.21 is a special statutory remedy to enforce child support orders, and to the extent that it permits the court to order the employer to withhold from the personal earnings of any person the amount ordered by the court for support,
and to continue such ivithholding each pay period until further order of the court,
it goes beyond the theory of attachment. Such a court order is not an attachment, nor a garnishment in the accepted legal meaning of these words. Paragraph C of R. C. 3113.21 indicates this distinction when it makes reference to “when an order of attachment or an order in aid of execution is issued such order shall be subordinated to any support order as provided in Division (A) of this section.”
*401
Even though R. C. 115.46 does not specifically indicate that a state employee is subject to a support order granted under R. C. 3113.21, we find that the state legislature, in effect, did subject employees to such court orders by the specific words of R. C. 3113.21, which became effective October 31, 1971. This latter section made no exception in its directive that “the employer” could be ordered to withhold certain sums from the personal earnings of employees. Construing R. C. 3113.21 and R. C. 115.46 together indicates a legislative intent to permit the state, as an employer, to be subject to support orders granted under R. C. 3113.21. It should be noted that these sections do not permit the state to be sued generally for claims against it, and in this sense do not involve the sovereign immunity doctrine. As an employer, the state now provides for many payroll deductions, such as federal income tax, state income tax, community chest, insurance, savings bonds and others. It should not be any additional burden upon the state to make deductions from an employee’s earnings as a result of a support order.
I would find assignments of error 1 and 3 not well taken, but would find assignment of error 2 well taken only insofar as the support order is not a garnishment proceeding. Inasmuch as the state of Ohio is really the employer in the sense that the employees of the Liquor Control Department are presumably paid through the state treasury, the notice required by R. C. 3113.21 should be sent to the Auditor of the state and should set forth the name of the office, department, division, board, bureau, or commission in which such employee is employed. In other words, the notice of the support order would be sent to the Auditor in much the same manner as the notice of attachment, garnishment, or proceedings in aid of execution must be served upon the Auditor under R. C. 115.51.