| Ark. | Jan 15, 1843
By the Court,
The record of this most unique, extraordinary and unprecedented proceeding, exhibits such a multiplicity of inconsistencies, as are rarely to be seen in the history of judicial proceedings, and should never be suSered to find a place in judicial records. The whole proceeding appears to be based upon the petition of Whitmore, representing that certain moneys, bank notes, personal property, and Corporation notes of the city of Little Rock, belonging to him, had been unlawfully seized, and taken from his house and possession, by a certain constable, who had placed the same under the control of certain justices of the peace, who had placed the same in the hands of the appellant as sherifF of Pulaski county, subject to the order of the Circuit Court of said county, and that he unlawfully detains the same; and praying an order to said sherifF to return the property so taken from him lo E. L. Johnson and Chester Ashley, his attorneys. This petition is signed “Johnson & Ashley, atty’s. for Whitmore,” and was filed in court on the 16th day óf Nov. 1842. On the 6th of December next ensuing, Whitmore appeared in court by attorney, and obtained an order of the court granting him leave to file his order in favor of said Johnson and Ashley, dated October 14th, 1842, and also his affidavit, then made in open court, stating among other things, that he had on the 14th day of October, 1842, aforesaid, transferred all his right to the property mentioned in said order, to said Johnson and Ashley, in consideration of certain specified services by them rendered and to be rendered for him. Previous to the filing of said order and affidavit, to wit, on 22d Nov. 1842, the court made an order on the sheriff to pay over to E. L. Johnson, fifty dollars of Arkansas bank notes, “of the property of the said Whitmore,” in his hands, to be applied by Johnson, to the support of Whitmore's family; and afterwards, on the 2d day of December, made a further order, that said sheriff “pay over to said E. L. Johnson and Chester Ashley, the money and property in his hands, belonging■ to said Whitmore, or show cause to the contrary on Monday next.”
The money and property were not paid over according to this order, and the sheriff in obedience to the rule against him, showed cause, and by his amended response thereto, made on the 8th Dec., after the order and affidavit aforesaid were filed, and the title orstyle of the proceeding changed by consent of all the parties concerned, and with the assent of the court, so as to represent the appellees as plaintiffs, and the appellant as defendant, stated such facts as showed that certain criminal prosecutions against said Whitmore, were then pending in said court, and that the money, property, bank and corporation notes aforesaid were the property of said Whitmore, at the time of his arrest and commitment on said charges, and immediately upon his arrest, was bound by law for all such fines, penalties and costs of prosecution as should be subsequently adjudged against him in any of the said prosecutions; and therefore he insisted, that he was clothed with a legal right, to keep and retain the same in his possession, to answer such fines, penalties and costs: and also showed that, as sheriff of said county, there was in his hands a valid and unsatisfied execution against the property of Whitmore, which had been placed in his hands to be executed on the 17th day of November, 1842, and that he levied on said execution the said ‡148 50; and therefore he alleged he was not only authorized by law to hold and in his possession said money and property, but was bound by law to do so.
The facts thus presented, show that it was conceded by all concerned, that the money, notes and property in question, belonged to Whitmore, on the 5th day of October, 1842, when he was arrested at the suit of the State, on criminal charges preferred against him, and that they were taken from his’lbouse and possession, by the constable or officer who made the arrest, either at the time of making it, or subsequently. But they do not, in our opinion, show any legal authority in the constable to seize, or take into his possession, and detain that or any other property of Whitmore, for any purpose whatever. For it does not appear that he had any warrant or authority whatever, except a writ of capias, commanding him to arrest Whit-more and take his body, before some magistrate authorized to inquire into the charges preferred, and commit or discharge him, but not conferring any authority whatever, to take possession of, and detain his property; nor does the law presume the existence of such authority : consequently the original seizure of the property by the constable, for aught that appears in this proceeding, was tortious, and his possession thereof unlawful. But the appellant insists that his possession of the property, is justified by the 202d section of the 45th chapter of the Revised Statutes of this State, which declares, that, “The property, both real and personal, of any person charged with a criminal offence, shall be bound from the time of his arrest, or the finding of an indictment against him, (whichever shall first happen,) for the payment of all fines and costs which he may be adjudged to pay.” This provision of law, we have no doubt, creates a lien in favor of the State, on all of the property of a person charged with a criminal offence, wheresoever it may be within the limits of the State, which attaches upon and binds it, not only in the hands of the accused, but also in the hands of any other person who shall, in any manner, possess or hold it, from the time of the arrest or indictment found, as mentioned in the Statute, until the accused is discharged from the prosecution, or such fines and costs, as shall be adjudged against him, are paid. But it surely was not the design of the law to confiscate the property of the accused, or to divest him of the possession and use of it pending the prosecution. For, even after conviction, no more of it can be legally seized, than will be sufficient to pay the fines and costs adjudged against the convict, and that only upon an execution or some other legal process or order issued for that purpose. We are therefore, clearly of the opinion, that the sheriff could derive no authority whatever, simply from the provisions of the Statute above quoted, without any legal processor order therefor, to detain the property in question from the legal owner, or person lawfully entitled to the possesion thereof.
But a portion of it, at least, appears to have been levied on by the appellant as sheriff of Pulaski county, by virtue of an execution against Whitmore, which came to his hands to be executed, pending Whit-more’s application for an order upon him to deliver the property to Johnson and Ashley, his attorneys, but before it was made, or any rule entered against him to show cause why it should not be so delivered. That the money, bank notes and property were liable to seizure by virtue of the execution, if they remained the property of Whitmore, when the execution against him came to the hands of the officer to be executed, there can, in our opinion, be but little doubt; and if they were'subject to the execution, the legal right of possession in so much thereof as was levied on the execution, vested in the sheriff immediately upon the levy being made, notwithstanding the prior lien of the State. But if they were not then the property of Whit-more, the defendant in the execution, the sheriff of course derived no authority from the execution to take or retain possession of them. Yet, admitting such to have been the case, we are still unable to discover any principle of law or rule of practice, which would authorize the claimant or legal owner of the property to assert his right, and recover either the specific chattels, or their value in this summary manner, by adopting a form of proceeding in which the parties would necessarily be deprived of the right of a trial by jury; and some of those immediately interested in the disposition of the property, be entirely excluded from any participation in the controversy, notwithstanding their prima facie legal rights constitute the principal, though not exclusive subject of investigation and adjudication: which is contrary to every principle of law. But there are other reasons why the course adopted in this case, to obtain the possession of the property in question, cannot receive the sanction of this Court. One is, that the law, after the sheriff had levied it, or a portion of it, at least, on the execution against Whitmore, prescribes a different mode of proceeding to ascertain the right of property in chattels levied on an execution where they are claimed by any person other than the defendant in the execution, that is, by a jury to be summoned by the sheriff for that purpose, after receiving from such claimant a notice in writing of his claim, and giving to the plaintiff in execution, or his attorney, at least five days notice of the time and place of taking such inquisition. Rev. St. Ark. p. 378, ch. 60, sec. 29, 30, 31, 32, 33. Another reason is, that the sheriff had no official possession of these chattels, until they were levied on the execution; or, in other words, he had not the possession of them by legal authority, but held them merely as the naked bailee of those who had placed them in his charge, and therefore as he did not hold them under the authority, or process of the Court, or as its officer, he was not in any way amenable to the Court in this summary manner for any course of conduct which he may have thought proper to adopt in respect to them, any more than a private citizen would have been, if they had been in like manner placed in his hands by the examining court. Besides, where any officer is called upon by rule to show cause in relation to any act done or omitted in the discharge of his official duty, the matter must generally be determined upon such facts as are shown when the rule is made, and such as appear in his answer, the truth of which, in general, cannot be controverted; and we think it may be safely stated as a general rule, that it is only in cases where the officer acts in obedience to, or by virtue of some order, authority or process of the court, in which the proceeding is instituted, that he is liable to be called upon, or proceeded against in this summary manner, and in such cases the officer will be coerced to discharge his duty, not by means of an ordinary judgment and execution, but by attachment.
But if the jurisdiction and power of the Circuit Court, to proceed in this summary manner to try and determine the legal title and right of possession to the property in question, and award judgment and execution in favor of the successful claimant, was admitted, still the right of the appellees to the property, simply upon the facts shown by this record, would be exceedingly questionable; for it must be remembered that they, as the attorneys of Whitmore, on the 16th day of November, 1842, sign and present his petition, asserting that the title to the property was then in him. This they of coarse cannot be presumed to have done in ignorance of their own previously acquired right to it, if it had been in fact transferred to them bonajidc, as stated in the affidavit of Whitmore, made on the 6th day of December following, and if his order to them bearing date on the said 16th day of October, for said property, had in fact been in their possession, previously to and at the time of exhibiting said petition; besides which the record shows further that, on the motion of Johnson one of the appellees, made in this case on the 22d day of November, 1812, “on behalf of the said Whitmore,” the sheriff was ordered “to pay over to the said E. L. Johnson the sum of fifty dollars of Arkansas Bank notes of the property of the said Whitmore in his hands to be by said Es L. Johnson applied to the support of the family of said Whit-more,” and so far as the record shows the facts, the appellees continued to assert in open court, in this very proceeding, the right of Whitmore to the money and property in question, until the said 6th day of December, when they filed the order of Whitmore in their favor, dated as above stated, together with his affidavit then made in open court; or, more correctly speaking, they were filed on the motion of Whitmore, who was then personally present in court, by his attorney, which is the first notice of their claim to the property to be found in the record: nor does it appear that they even then attempted to assert their own claim, or right of property until the 8th day of December, when the style of the case was so changed as to make the appellees appear as the plaintiffs and claimants of the property, although one intermediate order was made in the case between the said 6th and 8th days of December. We do not however consider ourselves called upon to express any opinion as to the right of property or to determine whether it was or was not subject to the execution in the hands of the sheriff, and we have alluded to it for the purpose solely of showing more clearly, not only that the. appellees had no legal right to assert their claim to it in the manner here attempted, but also the error of the court in entertaining their application, and proceeding in this summary manner to adjudicate and determine the conflicting claims of the respective parties to the property, and pronounce judgment upon the premises as it appears to have done in this case. We have therefore, upon a careful examination and consideration of the whole case, come to the conclusion that the Circuit Court, upon the facts shown, had no jurisdiction of the appellant, or of the money, notes and property in his possession, which constitute the subject matter of the controversy, to proceed to any adjudication in respect-thereof in a summary manner by rule of Court, against a person not acting in the premises under and by virtue ofits authority, order or process; and that in assuming such jurisdiction thereof, that Court unquestionably erred. Judgment reversed, and Court instructed to discharge the sheriff from all orders and rales entered against him.