117 Wis. 142 | Wis. | 1903
The following opinion was filed February 3, 1903:
1. The first question .presented is whether, either upon proceeding supplementary to execution or upon a creditors’ bill, the conduct of executors can be controlled by a court other than that from which they derive their authority. In other words, whether they are exempted from the broad language of secs. 3029, 3035, Stats. 1898, authorizing the maintenance of such proceedings and the entry of judgment therein against all persons, without express exceptions. That question is highly important, and appears never to have been raised or decided in this court, although we presume such proceedings have been often attempted in the trial courts, and in one instance, at least, sustained in this court, where no objection was raised. Oppenheimer v. Collins, 115 Wis. 283, 91 N. W. 690.
At an early day this court held that there must be imported, by construction, into the garnishment statute, an exception in favor of moneys in custodia legis, — in that case in the hands of a sheriff. Hill v. La C. & M. R. Co. 14 Wis. 291. The court there reviewed the conflicting authorities and the reasons given by various courts for holding against the garnishment of moneys so held, and adopted the following language from Marvin v. Hawley, 9 Mo. 378, 384:
“If the practice of garnishing 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*145 judgments, but it would involve the ministerial officers of tlie court in interminable difficulties and delay in tbe discharge of their duties.”
The reasons were summed up by Oole, J., in the following words:
“The practice would inevitably hinder and delay the sheriff in the discharge of those duties connected with the administration of the civil and criminal law of the state.”
In Burnham v. Fond du Lac, 15 Wis. 193, the same exception was extended to municipal corporations, upon the same reasons as those urged in the preceding case, although others also were found j and in J. I. Case T. M. Co. v. Miracle, 54 Wis. 295, 11 N. W. 580, executors were held to be exempt from garnishment, at least prior to a final order of distribution. The applicability of the same principle to trustees, accountable to a court, on the ground that the fund in their hands is in the custody of the law and under the control of the court appointing them, was intimated in Evans v. Rector, 107 Wis. 286, 290, 83 N. W. 292. We may therefore consider that this court, from amidst some conflict of authority elsewhere, has adopted the principle that moneys in custodia legis, the management and distribution of which are already under the control of a court, are not intended to be reached by garnishment proceedings instituted by creditors of the beneficiary which are directed at the custodians of the money and in which the judgments must affect and control the conduct of such custodians, thus imposing upon them burdens and inconvenience in the performance of their legal duties, and also conflicting with and obstructing the freedom and discretion of the court in whose custody the fund is; and this upon broad grounds of public policy.
Upon the question whether like considerations must prevent attempts to reach such funds by process other than garnishment, as by creditors’ bill or supplementary proceedings, there is also conflict of authority. Those courts which deny
“The rule that personal property in custodia legis is not subject to attachment or garnishment was adopted for the protection of the officer, and to avoid collision of authority and conflict of title. And the same x>rinciple forbids the maintaining of an independent equitable action to subject money in the hands of the clerk of the court in his official character. ... No case has been cited by counsel, nor by diligent search have we been able to find a single one, in which money in the custody of the law has been subjected to the claim of a creditor by means.of an action like the one before us. We do not think it can be maintained on principle.”
This logic seems to us unanswerable. No consideration which renders the garnishment of money in the hands of executors contrary to public policy fails when an attempt is made, through the medium of a court of equity, to control the conduct of such officers by injunction or by mandatory judgment for the payment or application of the funds in their hands. The same burdens of inconvenience and expense to the custodian result -from the one proceeding as from the other. The conflict with the court charged with the duty of regulating the conduct of the executor is quite as great in the latter procedure as in the former. We feel constrained to hold, in agreement with'the authorities above cited, that the same considerations of public policy heretofore declared with reference to garnishment extend to creditors’ bills and supplementary proceedings, and that the latter cannot be maintained as against these executors. Hence that portion
2. The remaining question is whether a creditor, through the medium of supplementary proceedings, can reach the interest of a judgment debtor in personal property, or its income, held for him upon a trust proceeding from a third person. Both counsel address themselves to a discussion of sec. 3029, Stats. 1898, which authorizes a suit (generally termed a creditors’ suit) in equity by the judgment creditor to reach property due or held in trust for the debtor, “except where such trust has been created by or the fund so held in trust has proceeded from some person other than the defendant himself.” On the one hand, it is contended that this, by implication, forbids such a suit to reach property so held; on the other, that such prohibition is-overcome by the provisions of secs. 2083, 2089, Stats. 1898. The question discussed is not whether property so in trust is exempted from liability for debts of the beneficiary, but whether it is excluded from the proceeding authorized by sec. 3029 by its very words above quoted. Strangely enough, both counsel seem to wholly overlook the fact that the present proceeding is not the one authorized by that section of statute, nor in any wise dependent upon it. This suit is not commenced by the judgment creditor, but, on the contrary, is a step in the proceedings authorized and regulated by secs. 3030-3038, Stats. 1898, commonly called “supplementary proceedings,” whereby the debtor may be called summarily before a magistrate to be examined, and any property “not exempt from execution” may be ordered applied on the'judgment, and necessary steps by appointment of receiver, with authority to sue,
By the Court. — The judgment is reversed, and the cause remanded with directions to enter judgment dismissing the complaiiit as against George A. Smith and Henry J. Hicks, as executors, and awarding relief against the defendant George J. Smith in accordance with the foregoing opinion.
Upon a motion by the respondent for a rehearing it was urged that the action should not be dismissed as to the executors. They are necessary parties, and without them no effective remedy can be given the plaintiff to enforce the right to the fund which the court says he should have. Arlington State Bank v. Paulsen, 57 Neb. 717, 78 N. W. 303, 80 N. W. 263; Ricketson v. Merrill, 148 Mass. 76, 19 N. E. 11; Barry v. Abbott, 100 Mass. 396; Lord v. Harte, 118 Mass. 271; Sparhawk v. Cloon, 125 Mass. 263; Forbes v. Lothrop, 137 Mass. 525; Baker v. Brown, 146 Mass. 369; Maynard v. Cleaves, 149 Mass. 307; Guyer v. Wilson, 139 Ill. 392;
The motion was denied March 21, 1903.
