Marvin v. Hawley

9 Mo. 378 | Mo. | 1845

McBride, J.,

delivered the opinion of the court.

This was a motion made against the sheriff of St. Louis county, to pay over to the plaintiff the amount of an execution in said sheriff’s hands, in favor of the plaintiff, and against the defendants. The circuit court overruled the motion, when the plaintiff having taken his bill of exceptions, has brought the case here by writ of error.

The bill of exceptions shows that an execution in favor of the plaintiff, and against the defendants, was placed in the hands of the sheriff of St. Louis county, returnable to the April term, 1845, of the St." Louis circuit court, at which term it was returned by the sheriff, “satisfied.” Upon the return day, and after the return of the execution, the attorney of record of the plaintiff, demanded of the sheriff payment of the money collected, which was refused; whereupon the plaintiff moved the court for an order on the sheriff to pay it over, or show cause why he did not pay it. The sheriff resisted the motion, on the ground that under several attachments, (setting them out by their title) issued by the clerk of the circuit court, the clerk of the court of common pleas, and a justice of the peace of said county, against the plaintiff Marvin; the money had been attached in his hands, and he summoned as garnishee, to answer interrogatories, &c. That he retains the money in his hands only for his own safety, until such time as it shall be determined whether he is liable as garnishee in said attachment suits.

This "court is called upon to decide,, whether money in the hands of the sheriff, collected on execution, can be attached by a creditor of the plaintiff in the execution, before the return day of the writ.

Marvin not being a resident of this State, the proceeding by attachment was instituted against him, under the first section of the first article of an. act, entitled “an act to provide for the recovery of debts by attachment.” Approved March 20, 1835, R. C. 76.

By the sixth section of the same article, among other provisions, is the following: “When goods and chattels, money, or evidences of debt, are to be attached, the officer shall seize the same and keep them in his custody, if accessible, and if not accessible, he shall declare to the person in possession thereof, that he attaches the same in his hands, and summon such person as garnishee. When the credits of the defendant are to be attached, the officer shall declare to the debtor of the defendant, that he attaches in his hands all debts due from him to the defendant, or so much thereof as shall be sufficient to satisfy the debt, interest and costs, and summon such debtor as a garnishee.”

This latter clause of the act evidently contemplates the existence of the relation of debtor and creditor, between the person garnisheed and the defendant in the attachment. It is the language of the statute itself, and the statute being in derogation of the common law, must be strictly construed. The question then arises, is a sheriff who receives money on an execution by virtue of his official character, the debtor of the plaintiff in the execution?

On this point there is some conflict of authority; the courts of Vermont and New Jersey, and perhaps some other of the State courts, having held that on the receipt of money collected by an officer on execution, the officer becomes the debtor to the plaintiff for the same. 1st Chipman, 50; 1 Harrison, N. J. 305. Whilst it has been decided in Massachusetts, 3 Mass. 289, and by the Supreme Court of the United States, 1st Cranch, 117, that the relation of debtor and creditor does not exist, and that not only has the execution creditor no right of action against the sheriff for money collected on execution before the return day of the execution, but that in strictness of law the sheriff might be held liable for a voluntary payment to the plaintiff before that day.

Money thus in the hands of an officer cannot be considered as a credit; for there cannot be a credit without a creditor and a debtor. The court say that “there is nothing in the reason of the thing resulting from the relation of a judgment creditor, and an officer who has collected money for him, which renders the one a debtor and the other a creditor. There is nothing said in any of the books, which implies that that relation exists between them. On the contrary.; money so collected, is in the custody of the law, and the sheriff is the trustee for its safe keeping. Money then, I think, under such circumstances, is not the goods, effects and credits, of the judgment creditor in the sense of the act.” Upon legal principles, we think the latter decisions are correct.

The reason of the above rule, upon principles of general policy, is still less questionable. If the practice of garnisheeing the sheriff for money in his hands, received on execution, were tolerated, it would not only greatly interrupt the due and speedy administration of the law, and prevent the courts from consummating their judgments, but it would involve the ministerial officers of the court in interminable difficulties and delay in the discharge of their duties.

The writ commands the sheriff to make the money, and have it in couri on the return day thereof. On that day the plaintiff’s attorney and witnesses, with the officers of the court who have rendered services, some perhaps under compulsory process, attend to receive their fees; when the sheriff, instead of producing the money, that those who are thus entitled (arid some of whom have liens created by law) may be paid their respective demands, certifies to the court that the money has been taken out of his hands by an attachment issued from the office of another court, or from the office of a justice of the peace in the county. Tf the return will excuse the officer, and it must have that effect, if the proceeding by attachment against him be permitted, then those having liens, and those who have been compelled by law to render services in the cause, are defeated in their just claims, and the court divested of its equitable power to dispose of the money, made by virtue of its own writ, amongst those entitled thereto: If the sheriff be amenable to such a proceeding, it will necessarily impose upon him the burden and costs of attending all the eourts in the country, and answering the interrogatories filed against him. He will not only be. compelled to do that, but he will have to decide at his peril upon the rights of all those who have an interest, in law or equity, to the money in his hands. He will furthermore be compelled to incur the responsibility of retaining the money in his hands, until the final determination of the suit by attachment.

It is not the policy of the law thus to embarrass the regular proceedings of the courts, deprive parties of their rights, and impose such onerous and difficult duties on the sheriff. We are then of opinion that money in the hands of the sheriff, collected on execution, cannot be at tached by a creditor of the execution plaintiff before the return day of the writ.

Judgment reversed and cause remanded.