18 Nev. 247 | Nev. | 1884
By the Court,
This suit was instituted by the executors of the last will of B. B. Norton, deceased, for the purpose of determining the ownership of an allowed and approved claim against his estate and in favor of the Reno Savings Bank. Appellant Haydon claims by virtue of a writ of garnishment served upon the executors, and an actual levy and sale of the claim under an execution issued upon a judgment in his favor and against the bank. The respondents claim under assignments made subsequent, to the proceedings by which appellant claims ownership. The only matter necessary for consideration is whether appellant acquired any rights by virtue of the garnishment, levy and sale, no order for distribution to creditors having been made.
The'proposition that an executor is not, under these circumstances, answerable to the process of garnishment, is abundantly supported by the authorities. The reasons for the conclusion are well expressed in the ease of Shewell v. Keen, 2 Whart. 339. The court in that ease said: “Another circumstance of weight is, that au executor or administrator is, to a certain extent, an officer of the law, clothed with a trust to be performed under prescribed regulations. It would tend to distract and embarrass these officers if, in addition to the ordinary duties which the law imposes, of
Appellant mainly relies, however, for title, upon the alleged levy and sale of the claim, independently of the garnishment. The sheriff seized in execution and took in custody the paper writing among the files of the clerk of the court containing a statement of the claim of the Reno Savings Bank against the estate of Norton, regularly allowed by the executors and approved by the district judge. The same considerations which have moved courts to exempt executors from garnishment require that claims against an estate should not be subject to levy and sale. The vexation and delay which successive attachments would produce would be the same in cases of actual levy as if the proceedings were by garnishment, and one mode as much as the other would tend to divert the money of the estate from the course which the law has prescribed for it. The results produced by either methods being the same, a change of means cannot change the aspect of the question. There is no just ground for permitting one method of procedure and not the other.
Again, the property, which the laws concerning attachments and executions require shall be taken into custody, is tangible, visible property, capable of seizure and actual possession. Concerning property such as was sought to be reached in this case, the statutes expressly provide that “ debts and credits, and other personal property not capable of manual delivery,” shall be reached by garnishment. (Sections 1189, 1191, 1280.)
The order of the district court granting a new trial is affirmed.