4 Willson 493 | Tex. App. | 1892
Opinion by
§ 286. Garnishment; money, etc., in the hands of a sheriff taken by him from a-prisoner is not subject to. One Knox, who is one of the appellants in this case, was arrested by Richardson, another of the appellants, who was sheriff of Tarrant county, for carrying a pistol. According to the jail regulations in that county, Richardson, the sheriff, took from the possession of Knox, when he put him in jail, $930, and other sums of money, and certain warrants and checks, for safe-keeping during his incarceration. While the sheriff had said money and effects in his possession, belonging to Knox Anderson, the appellee sued out a writ of garnishment, and had the same served upon the sheriff. The sheriff, as garnishee, in his answer set up substantially the facts as above stated. Knox filed an intervention in the garnishment suit, and claimed — First, that the money was taken from him by the sheriff without his consent, and was in the sheriff’s possession custodia legis, and, being in custodia legis, was not subject to garnishment; secondly, that the money and property taken from him by the sheriff at the time and place mentioned was taken unlawfully, violently, and by force, and against the will of the intervenor, and that the sheriff was a trespasser, and “that said money and property were taken by trespass, and, while it was thus unlawfully in the hands of the sheriff, the writ of garnishment was served upon him; third, his arrest, and the taking and detention of his property by the sheriff, was the result of a conspiracy between the sheriff and
In Pace v. Smith, 57 Tex. 555, it is said: “ The general rule that property in the custody of the law is not subject to garnishment is too well settled upon authority to be questioned. [Drake, Attachm., ch. 22; Freem. Ex’ns, §§ 129-133, — both referring to numerous authorities; Taylor v. Gillean, 23 Tex. 508; Edwards v. Norton, 55 Tex. 405.] This, besides other officers, includes receivers, assignees in bankruptcy, disbursing officers, sheriffs, clerks, executors, administrators and guardians. The general principle underlying this doctrine is that ‘no person deriving his authority from the law, and obliged to execute it according to the rules of law, can be holden by process of this kind.’ [Brooks v. Cook, 8 Mass. 246.] ” In Sweetzer v. Claflin, 74 Tex. 667, it was held “that a service of a writ of garnishment upon a district clerk gives no lien upon the funds deposited by the sheriff with the clerk to await the further action of the court; ” and
We are of opinion that the court erred in sustaining the exception to the first and second pleas interposed by the intervenor, Knox; and further, the court erred in rendering judgment in favor of Anderson, appellee, subjecting the. money in his hands to the payment of
Reversed and rendered.