Caskey v. Mcmullen

• Citation: 3 S.C. 196
• Parties: CASKEY v. MCMULLEN.
• Decision Date: 11 December 1871
• Court: United States State Supreme Court of South Carolina

3 S.C. 196

CASKEY
v.
MCMULLEN.

Supreme Court of South Carolina.

Dec. 11, 1871.

A rule against the Sheriff must be discharged, unless it appears that the money in his hands is applicable to the execution of the party at whose instance it was granted. The Court cannot order the money to be paid to another execution creditor.

BEFORE THOMAS, J., AT LANCASTER, OCTOBER TERM, 1870.

Rule against James D. Caskey, Sheriff of Lancaster County.

The case, as it appeared by the Sheriff's return, was this: There were three executions in the Sheriff's office against Uriah Small, defendant, one in favor of Wm. McMullen, another in favor of Mary Small, and a third in favor of James P. Small. McMullen's execution was against Uriah Small and James P. Small as joint defendants. The other executions were against Uriah Small alone. Under these executions, the Sheriff sold property of Uriah Small,

[3 S.C. 197]

and this rule was granted, at the instance of McMullen, to compel the Sheriff to apply the money arising from the sale to his execution.

His Honor held that the money was applicable to the execution of James P. Small, and ordered the Sheriff to apply it to that execution.

The Sheriff appealed, on the ground that the Court having held that the money was not applicable to McMullen's execution, the rule should have been discharged.

Moore, for appellant.

Kershaw, Connors, contra.

The opinion of the Court was delivered by

MOSES, C. J.

The motion here made must prevail. The only parties before the Court were the respondent, McMullen, and the Sheriff against whom the rule issued. When the Circuit Judge held that the fund, in the hands of the Sheriff, was not applicable to the execution of the plaintiff, at whose instance the rule was ordered, it should have been discharged. To hold that the money was to be appropriated to a party not before the Court, not only affected the interest of execution creditors, who had no opportunity of being heard, but possibly deprived them, as to all practical purposes, of the right to attack the judgment, which, by the order, the Sheriff was directed to pay.

The mode of proceeding by rule to compel a...