First National Bank v. Davenport & St. Paul R., 45 Iowa 120

First National Bank v. Davenport & St. Paul R.

45 Iowa 120 | Iowa | 1876

Day, J".

We have set out in full the answer of the garnishee, because thereon, alone, depends the question of the garnishee’s liability.

*1271. GABirisHment : when property is ii-able: prineipal and agent, *126The garnishee asserts that at the time of his garnishment *127lie did not have in his custody and control any money or property belonging to the Davenport Railroad Con- ° , ° 0 1 struction Company. Still he concedes that he did . x r . , have some kind of possession of $3,443, belonging to that company. He sets forth the facts connected with the relation in which he stood to that money, and whether or not it was so in his custody and control as to make him liable to the process of garnishment is a legal inference to be drawn from the facts proved.

The answer of the garnishee shows that he was auditor and cashier of the operating department of the Davenport Railway Construction Company. As auditor he had charge of the accounts, examined agents’ reports, and.kept.the books. As cashier it was his duty to examine and receipt for the cash remitted by the agents, to make collections from the roads, and to cause anything to be done necessary to the prompt and regular collection of the earnings of the road, and to make such disposition of the cash in hand as he was directed to make from time to time by the general manager, Smith! At the time of his garnishment he had on hand, of money so received, belonging to the operating department of the Davenport Railway Construction Company, $3,443. This money was kept in a safe provided by the construction company, to which the garnishee alone had a key. The garnishee claims that he is not liable because he did not have independent control of the money, but was under obligation to dispose of it as directed by his superiors. The position of appellee cannot be better expressed than in the following quotation from the argument of his counsel: “The fallacy of the plaintiff’s argument consists in assuming that the garnishee had these moneys in his possession and in his custody or under his control, a fact which has not only not been proved, but the contrary most clearly and distinctly appears. The possession and control of property contemplated by the statute, does not mean • the mere physical power to take possession of it and carry it off; but the independent possession — the present and immediate rightful custody of it, including the right to retain that possession, and to maintain that custody and control of it. *128The law does not require that the garnishee should commit a trespass, or a gross breach of faith, in order to obtain or retain possession of the attached property.”

Appellee, in assuming that the possession which will warrant the process of garnishment must be an independent possession, coupled with the right to retain possession and maintain custody and control, is, we think, clearly in error. Aside from express contract, one does not obtain such possession and control of the property of another. Suppose a party makes a simple deposit of money in a bank, without any agreement as to the time the deposit shall remaim The bank holds the money entirely subject to the control of the owner. It cannot' rightfully hold the money an hour after the owner has directed it to be paid out. Yet it cannot be questioned that, while the money remains in the bank, the bank may be garnished. Suppose garnishment process served upon the bank, and that afterward the owner orders the money to be paid out in a-particular way. Does the bank commit a breach of faith in holding the money, and refusing to dispose of it as directed by the owner?

The fallacy of the’ appellee’s argument is in placing the duty of the garnishee to his principal above his duty to obey the mandate of the law. It may be conceded that the answer of the garnishee fully discloses that it was his duty to pay out the money in his possession as ordered by Smith; but the process of the court imposed upon him a paramount duty to retain it in his possession, and an obedience to that order would not render him a trespasser, nor involve him in a breach of faith. We think appellee’s counsel concede enough to establish the liability of this garnishee. In their argument they say: “We do not take the ground * * * * that Conner cannot be held because he was an employe, and not an officer of the corporation. An employe may clearly have such possession — such custody-and control of the property of his-employer as to subject it to garnishment in his hands. It depends altogether upon the nature of the employment. For instance, the agent of a railroad at ono of its stations certainly has the unqualified and independent posses-' *129sion and control of the moneys of the company which come into his hands. He is only an employe, yet the nature of his employment and of his duties may, and probably would, render the moneys in his hands subject to garnishment. He has the independent possession, control and custody of those moneys; while the cashier whom the company might employ to assist him in his work, by looking after and keeping accounts of those moneys, would not have any such possession and control of them.”

Tet, these station agents are subordinate to the garnishee in this case, and are required to remit to him the moneys by them collected. Suppose such an agent had been garnished, and he had immediately been removed, and ordered to pay over all the moneys in his hands to Conner. Could he afterward retain the money without a gross breach of faith? If he could, we are unable to see why the garnishee in this case may not do the same; and, if he could not, it is apparent that a railway company may, at pleasure, render the process of garnishment unavailing. ¥e are satisfied that the appellee had such custody and control of the money in question as to render it subject 'to garnishment in his hands. He should have retained that possession, and held the money subject to the order of the court. In failing to do so he has magnified his duty to his employer, and has ignored his obligations to the law. The court should have held him liable upon his answer.

Reversed.