158 Iowa 252 | Iowa | 1913
This is an action against George Whitmore, as sheriff, and the sureties on his official bond for the conversion of a bank draft alleged to have been held by him through a deputy sheriff to satisfy the claim of plaintiff in an action against Walter Brown. It appeared that, in aid of the action against Brown, a writ of attachment issued and was placed in the bands of C. W. Grafton, a deputy sheriff, for levy which was effected February 11, 1911, by serving A. F. Swanson notice of garnishment and taking his answer, which disclosed that he was indebted to Brown in the sum of $300. About a month afterwards, the garnishee, with T. W. Keenan, his attorney, called on the deputy, and, through Keenan, delivered to him a draft or check for $300 on a bank at Essex. In
Prior thereto, and on April 4th, Swanson had filed a formal answer as garnishee, denying any notice had been served on defendant Brown, and setting up that he had turned over to the sheriff or deputy sheriff “the $300 referred to in his answer to said garnishment; that he is not in any way interested in the outcome of the controversy between plaintiff and defendant herein, but asks that his rights, ‘as garnishee, be protected; that the money above referred to be held by the sheriff awaiting the final outcome of this action, and that the said sum, or such portion thereof as is not required to pay whatever indebtedness may be owing from defendant to said' plaintiff, be surrendered to said defendant as part payment on the land contract, a copy of which is hereto attached. Wherefore said garnishee prays that the said garnishment be dissolved, and that he be dismissed and given his costs herein; that he be exonerated from all liability to the defendant by reason of said $300 this day paid into court; and that the rights of all parties to said money be determined by this court, and that the rights of said garnishee be protected. ’ ’ This answer was signed by Keenan, as attorney for Swanson, but. though offered in evidence, was excluded on objection as incompetent,. irrelevant, immaterial, ánd not binding on de
If in any of the above methods it is made to appear that the garnishee was indebted to the defendant, or had any of his property in his hands, at the time of being served with the notice of garnishment, he will be liable to the plaintiff, in case judgment is finally recovered by him, to the full amount thereof, or to the amount of such indebtedness or. property held by the garnishee, and the plaintiff may have a judgment against the garnishee for the amount of money due from the garnishee to the defendant in the main action or for the delivery to the sheriff of any money or property in the garnishee’s hands belonging to the defendant in the
Two other statutes may also be set out:
Section 3902: All money attached by the sheriff, or coming into his hands by virtue of the attachment, shall forthwith be paid over to the clerk, to be by him retained till the further action of the court.
Section 3903: The sheriff shall make such disposition, of other attached property as may be directed by the court or judge, and where there is no direction upon the subject, he shall safely keep the property subject to the order of the court.
If, then, the draft came into the deputy sheriff’s possession in the garnishment proceedings and in pursuance of section 3944 of the Code quoted above, and is to be regarded as money, it should have been paid to the clerk under section 3902, and, if considered property, should have been “treated as if levied upon under the writ of attachment in the usual manner,” to be disposed of as might “be directed by the court or judge,” and, in the absence of any such direction, to be “safely kept” subject to the order of the court.
Of course the deputy sheriff might have declined to re
In Greenhood on Public Policy, at page 306, the author well says that “any agreement which in itself is, or which contemplates or involves or requires or is calculated to induce, a dereliction or laxity in the performance of public or private duty of men is void. ’ ’ And such is the doctrine of this court. Cole v. Parker, 7 Iowa, 167; Cass County v. Beck, 76 Iowa, 487.
It is said in Mechem on Agency, section 590: “Whenever the law imposes upon a public officer the performance of. ministerial duties in which a private individual has a special and direct interest, the public officer is liable to such individual for any injury which he may sustain in consequence of the failure or neglect of the officer, either not to perform them at all, or to perform them properly. In such a case the officer is liable as well for, nonfeasance as for misfeasance or malfeasance.”
The theory on which the officer is held as agent is explained thus in 5 Thompson on Negligence, section 6405;
*260 Another distinction exists, in respect of the liability of officers, between those who act directly for the public, and indirectly or mediately for individuals, and those who act directly for individuals, and indirectly or mediately for the public; or, stated another way, between officers who act for the public collectively, and those who act for the public distributively. The officers already instanced — the member of the Legislature, the Governor, the judge, the policeman the road overseer — belong to the former class. To the latter class belong clerks of courts, notaries public, recorders of deeds, sheriffs, constables, coroners when executing civil process, and inspectors of meats. These officers are required by the statutes governing their office,' to perform certain designated duties for any individual who may tender to them, or secure the payment of, the statutory fee, and sometimes without this prerequisite. Their relation to an individual, who thus requests them to act, is analogous to a relation resting in contract. The liability of the officer is the same as though he had agreed with the individual to do the particular work. for the stipulated fee and then had failed wholly or in part to do it. A privity exists between them, corresponding to what is called privity of contract, and the individual may recover of the officer the damages he has suffered from the failure of the officer to perform the required duty, or his negligence in performing it.
Says Freeman in his work on Executions, section 108:
One inquiry will be answered here, Who is entitled to control the writ? The officer should always bear in mind that the writ is intended for the benefit of the plaintiff, who alone is interested in its enforcement. The interest and wishes of the plaintiff should at all times be respected. . . . But all directions of the plaintiff, not savoring of fraud nor undue rigor or oppression, must be obeyed, or the officer will be held liable for injuries flowing from his disobedience.
For this reason, arrangements made by the sheriff in pursuance of directions or an agreement by plaintiff were carried out in Bank v. Loomis, 100 Iowa, 266, and Buckham v. Wolf, 58 Iowa, 601.
7. Garnishment : judgment : sufficiency. IY. One of the grounds of the motion to direct a verdict for defendant was that plaintiff “failed to show the existence of a valid judgment or order or finding against the principal defendant Brown, or the amount or extent of his indebtedness, if any, to the plaintiff,” and also that no notice of the garnishment proceedings had been given. The only judgment entry introduced in evidence reads:
W. F. G-utschenritter, Plaintiff, v. Walter Brown, Defendant, v. A. F. Swanson, Garnishee, Walter Brown, 'Defendant. No. 414. This cause coming on for hearing on the answer of A. F. Swanson, garnishee, heretofore filed, and Ferguson & Barnes, attorneys for plaintiff, being present in court, and T. W. Keenan, attorney for said A. F. Swan*262 son, garnishee, being present in court, but the defendant, Walter Brown, appearing not nor any one for him, and it appearing to.the court that legal notice of the pendency of this suit and of the garnishment of the said Swanson as the supposed debtor of the defendant had been given, and proof of publication of said notice on file with the clerk of this court, and it further appearing from the answer of said garnishee that he is indebted to the defendant Walter Brown in the sum of $300, all of which is shown to the satisfaction, and the court being advised in the premises, it is ordered and adjudged by the court that the plaintiff, W. F. Gutschenritter, have and recover judgment against the said A. F. Swanson, garnishee, in the sum of $191.76, at 6 per cent, interest thereon from this date, and the costs of this suit,.together with the costs of the original suit of W. F. Gutschenritter v. Brown, taxed at $37.35. George H. Castle, Judge.
The evidence disclosed that defendant Brown was duly served with notice by publication, and the recital in the entry, though singular, sufficiently referred to both the notice of the pendency of the suit and that of the garnishment proceedings.
An action cannot be maintained thereon. Miller v. Dungan, 36 N. J. Law, 21. And it may be assailed by other attaching creditors or strangers. Meyer v. Gage, 65 Iowa, 606.
Reverting to the judgment entry set out, it will be observed that everything essential to its validity is contained therein, with the possible exception of ,a finding of the amount owing by defendant to plaintiff. That is not expressly found, but is clearly to be inferred therefrom. Manifestly the amount of the judgment was fixed at less than the indebtedness of the garnishee to defendant, for that only such amount was owing by the latter to plaintiff, and, as the court could enter judgment against the garnishee only upon a finding that a like amount was owing plaintiff, it is to be inferred that the court actually found defendant to have been indebted to plaintiff in the sum for which judgment was entered against the garnishee. No objection to the judgment entry was interposed, and, even though the same may be somewhat informal, it was subject to correction on motion of any of the parties thereto. This being so, the sheriff is not in a situation to complain of such informality in an action against him for damage consequent on his wrongful act in preventing the satisfaction of plaintiff’s claim.
For the reasons stated, the judgment was not void, and the court erred in directing the jury to return a verdict for defendant. It should be added that there was also error in not admitting the garnishee’s answer in evidence, as bearing on the judgment entry, if for no other reason. — Reversed.