Bruchal v. Smith

• Decision Date: 13 June 1929
• Court: Connecticut Supreme Court
• Parties: BRUCHAL v. SMITH.

146 A. 491

109 Conn. 316

BRUCHAL v. SMITH.

Supreme Court of Errors of Connecticut.

June 13, 1929

Appeal from Superior court, New Haven County; Leonard J. Nickerson Judge.

Action of scire facias by Esther Bruchal against Philip T. Smith brought to the superior court of New Haven county and tried to the court. Judgment for defendant, and plaintiff appeals. No error.

Wheeler C.J., dissenting in part.

Robert J. Woodruff and John G. Confrey, both of New Haven, for appellant.

Louis Feinmark and Jesse Greenes, both of New Haven, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

HINMAN, J.

The defendant is chief of police of the city of New Haven. On October 2, 1925, a complaint and warrant was issued for the arrest of one Nick Spiak, alias Michael Fedorowitch, alias Joseph Novak, charging him with the crime of theft, which was given to a subordinate officer for service. The officer went to a room which had been occupied by Spiak, which he forcibly entered, and found therein some boxes with $5 bills between green paper--a device used for swindling--some money, and four postal savings certificates in the name of Joseph Novak. Spiak was not there, nor has he since been found. The officer took the money and property to police headquarters, and delivered it to the defendant as chief of police. It consisted of $285 in money, the four postal certificates, amounting to $1,000, and some personal wearing apparel, and other property.

On November 20, 1925, the plaintiff, Esther Bruchal, brought an action (for breach of promise of marriage (against Spiak, with his various aliases, and caused garnishee process to be served on Smith, the defendant herein. In the original action the plaintiff had judgment on June 30, 1926, and demand on execution was subsequently made on Smith, as garnishee, and refused. The plaintiff thereupon brought this action of scire facias, claiming to be entitled, by virtue of foreign attachment, to the money and postal savings certificates, to respond to the execution.

The trial court found that this property was held by the defendant at the time of service of garnishee process, and has since been held by him, as chief of police, " to be used as evidence against Spiak, who is a fugitive from justice. It affords means of identifying Spiak as Joseph Novak, the postal savings certificates being in that name, and is necessary evidence against him in connection with the crime charged." Upon these facts it was held that " the defendant as chief of police is not liable by trustee process to a creditor for property taken in making criminal service and * * * held by him to be used as evidence in connection with criminal charges."

The appellant seeks to eliminate the finding that the property in question " is necessary evidence against him (Spiak) in connection with the crime charged." It appears to be undisputed that the alleged act on which the particular charge of theft which was the subject of the warrant issued was based was an attempt on the part of the accused to carry away certain money belonging to Miss Bruchal, the plaintiff, which attempt was frustrated and the money recovered. The defendant, who was called as a witness by the plaintiff, being asked if he was holding the cash and postal savings certificates as evidence in respect to this warrant, replied, " Not necessarily, no." However, he exhibited and explained the apparatus found in the room, which, he stated, was a swindling device for the pretended transmutation of white paper into genuine money, and testified, further, that the accused was wanted for perpetrating this scheme, and that the money was being held " as evidence to present in court when we apprehend him." The plaintiff is entitled to the specific correction requested, but the court has also found, in effect, that the property, including the money, is held as evidence against Spiak on other criminal charges, as to which warrant may issue if and when he is located, and this finding is not attacked.

The single question of law presented by the appeal is whether property so taken and held is subject to garnishment in the hands of the defendant. By the great weight of authority, an officer, in the absence of express statutory sanction, cannot be held liable as garnishee for personal property taken from the possession of a defendant in a criminal case. The reasons stated in the opinions so holding include that to allow such garnishment would be to encourage the institution of unjustifiable criminal proceedings for the purpose of collecting civil obligations; that the property is in custodia legis; that it is contrary to public policy that a public officer should be subjected to the process of garnishment; that it would lead to collusion and fraud; that it would interfere with the officer's possession of property which might be necessary to be used as evidence in a criminal proceeding; that the possession of the officer is that of a bailee, or is, in fact, the possession of the accused. Kuehn v. Faulkner (1925) 136 Wash. 676, 241 P. 290, 45 A.L.R. 571, 572; notes, 16 A.L.R. 378, and 45 A.L.R. 574; 1 Freeman on Executions, § 130a; 28 Corpus Juris, 76.

We find no occasion to determine as to the force and efficacy of some of these considerations as justifying a denial of the right of garnishment of such property, but think there can be no question of the propriety and necessity of according such protection as to property which is being held as evidence against an accused person or as to which there is a reasonable probability that it will be so required, so long as such condition continues. Most of the decided cases pertain to property taken from the person of an accused upon his arrest or incarceration, but we perceive no valid distinction between property so taken and that obtained as in the present instance. Nor is there apparent any reason for discrimination between property retained as evidence with respect to the specific crime for which the arrest is made or sought and that connected with...