80 Ark. 1 | Ark. | 1906
B. J. Brown instituted a suit against J. F. Reid in the Pulaski Chancery Court, to foreclose a mortgage executed by the defendant to the plaintiff to secure certain indebtedness. On the 29th day of March, 1905, the chancery court rendered a decree in favor of the plaintiff against the defendant for $3,241.80, the amount of the indebtedness secured, and ordered the land described in the mortgage to be sold to satisfy the judgment, and appointed F. A. Garrett, the clerk of the court, a commissioner to make the sale. On the 21st day of April, 1905, the day appointed for the sale, the commissioner offered the lands to the highest bidder at public vendue, and sold the same to W. H. Schaer for $3,485, which he paid to the commissioner.
On the 21st day of April, 1905, B. W. Green commenced an action, before a justice of the peace of Pulaski County, against J. F. Reid on a promissory note, and sued out an order of attachment ; and on the 26th day of April, 1905, as a part of the attachment proceeding, sued out from before the justice of the peace writs of garnishment, alleging therein that F. A. Garrett, who was clerk of the Pulaski Chancery Court, and F. A. Garrett, the same person, as commissioner, was indebted to Reid, the defendant, for a surplus from a sale. The writs were directed to any constable of Pulaski County, and commanded him to summon F. A. Garrett, and F. A. Garrett as commissioner, as garnishee, to appear before the justice of the peace, on the 6th day of May, 1905, to answer what goods, chattels, moneys, credits or effects he may have in his hands or possession belonging to the defendant, and to answer such further interrogatories as may be propounded to him. The writs were served on the same day. Thereafter, on the same day, Reid made an assignment of all his right, title and interest in and to the purchase money that might accrue to him from the said sale to T. N. Robertson. On the same day Robertson filed a petition in the chancery court, in B. J. Brown v. J. F. Reid, stating that the assignment had been made 1o him, and asking that his rights be protected.
On the 28th of April, 1905, the commissioner, Garrett, reported to the court that he had sold the lands to Schaer, and that he (Schaer) had paid the purchase money, and asked that he be allowed $50 for his services; all of which the court approved, and on the same day the court allowed Schaer, the purchaser, $46.20, as a.credit for taxes paid by him on the lands.
• On the 2d day of May, 1905, commissioner Garrett, in pursuance of the order of the court, paid to Brown the amount due on his judgment against Reid out of the proceeds of the sale under the decree of foreclosure.
On the 4th day of May, 1905, Green filed his petition in the chancery court, stating that he had caused the writs of garnishment to be issued and served before the assignment to Robertson, and asking that an order be made directing the commissioner to hold the money arising from the sale under the decree of the court, and remaining in his hands and not disbursed under previous orders of the court, “in obedience to the writs of garnishment.”
On the 6th day of May the petitions of Robertson and Green were presented to the court, and on the 13th day of May the court adjudged, ordered and decreed “that the F. A. Garrett as commissioner is not subject to the writ of garnishment; that there is not now nor has there been in the hands or possession of F. A. Garrett or F. A. Garrett as commissioner any goods, chattels, moneys, credits, or effects belonging to J. F. Reid as surplus from the foreclosure sale subject to the garnishment; that B. W. Green be forever enjoined and restrained from the further prosecution of the garnishment proceedings against F. A. Garrett as commissioner; that T. N. Robertson, by virtue of the assignment to him by J. F. Reid, is the lawful owner of the balance of the purchase money from the foreclosure sale, amounting to $- now remaining in the custody of this court and not disbursed by its previous orders; that said amount is hereby ordered to be paid ever to him, the said T. N. Robertson, as the lawful owner.” And Green appealed.
Was so much of the proceeds of the sale of the lands under the decree of the court as would be due to Reid, after the payment of the judgment in favor of Brown and all other claims thereon, subject to garnishment or attachment at the time the writs of garnishment were served on Garrett? -This is the only question presented by the appellant and appellee for our consideration and decision.
The proceeds of the sale, when paid by the purchaser, became conditionally a fund in court. It was subject to the control or disposition of the court. The purchaser or bidder could not, without permission of the court, regain possession of it. On the contrary, it was within the power of the court, by summary orders and proceedings, to compel him to act in pursuance of the decree under which the sale was made. Porter v. Hanson, 36 Ark. 591, 606. The only condition on..which it could cease to be a fund in court was a disapproval of the sale by the court. When the sale was confirmed, it absolutely became a fund in court, and the confirmation related back to the day of s'ale.
In the absence of a statute authorizing it, a fund in court is not subject to garnishment or attachment until the purpose for which it is held as such has been accomplished, and the only duty of the officer holding the same is to pay the money to the defendant in the garnishment or attachment. Dunsmoor v. Furstenfeldt, 88 Cal. 522; Weaver v. Davis, 47 Ill. 235; Willard v. Decatur, 59 N. H. 137; Wilbur v. Flannery, 60 Vt. 581; Rood on Garnishment, § § 27, 31-34; 2 Shinn on Attachment and Garnishment, § § 506 and 507.
We have, however, a special statute in this State authorizing the attachment of funds in court. After prescribing the manner in which orders of attachment containing clauses authorizing the summoning of garnishees may be executed upon different kinds of property, it says: “Where the property to be attached is a fund in court, the execution of the order of attachment shall be by leaving with the clerk of the court a copy thereof, with a notice specifying the fund; and where several orders of attachment are executed upon such fund on the same day, they shall be satisfied out of it ratably.” Kirby’s Digest, § 358. The time when it can be attached is not specified. So long as it exists, it can be attached at any time.
We are not without precedents sustaining this construction “1’n the absence of a special statute it was an undisputed rule of law that an executor or administrator could not, in his official capacity, be held liable as a garnishee at the suit of a creditor of the decedent, or of one who was a legatee or distributee, or other creditor of the estate.” 2 Shinn on Attachment and Garnishment, § 510. In Massachusetts a statute provided “that any debt or legacy due from an administrator, and any other goods, effects or credits in the hands of an administrator or executor, may be attached by the trustee process.” In Wheeler v. Bowen, 20 Pick. 563, is was held that, under this statute, “the interest of an heir at law in a distributive share of an intestate estate, in the hands of" the administrator, is subject to be attached on the trustee process before a decree of distribution, and although it may be uncertain whether there will be any assets for distribution; and the suit may be continued until sufficient opportunity has been given for the settlement of the administrator’s account ,and a decree of distribution.” See to the same effect Strong v. Smith, 1 Metc. (Mass.), 476; Hoar v. Marshall, 2 Gray, 251; Sinnickson v. Painter, 32 Pa. St. 384; Simonds v. Harris, 92 Ind. 505; 2 Shinn on Attachment and Garnishment, § 511, and cases cited.
In Strong v. Smith, 1 Metc. 476, Chief Justice Shaw, speaking for the court, said: “The trustee process,” under the Massachusetts statute, “operates as a species of compulsory statute assignment by which a creditor may obtain that by operation of law which his debtor might voluntarily assign to him in payment of his debt.”
In the case before us the writs of garnishment were a part of an attachment proceeding, the legal effect of the execution of which was to attach the fund in court in controversy at. the time they were executed, and, the writs 'being prior in time to the assignment to Robertson, he takes nothing until the debt secured by garnishment is satisfied.
The decree of 'the court is reversed, and the cause is remanded with directions to the court to enter an order' commanding the commissioner to hold the said surplus subject to the garnishment.
