Green v. Robertson

• Decision Date: 09 July 1906
• Citation: 96 S.W. 138,80 Ark. 1
• Parties: GREEN v. ROBERTSON
• Court: Arkansas Supreme Court

96 S.W. 138

80 Ark. 1

GREEN v. ROBERTSON

Supreme Court of Arkansas

July 9, 1906

Appeal from Pulaski Chancery Court; Jesse C. Hart, Chancellor reversed.

Decree reversed and cause remanded.

Thomas T. Dickinson, for appellant.

1. The statute expressly authorizes the attachment of a fund in court. Kirby's Digest, § 358. Compare Code Ky § § 227, 228 and 231; Bullitt's Codes, Ky § § 202, 203, 207 and sub-div. 3, § 51; Ind Ter. Stat. 1899, § § 342, 345; 2 Hill's Ann. Stat. and Codes of Wash. § § 300, 307; Code, Iowa, § § 3897, 3898, 3899 and 3937, and note the construction placed thereon by the courts of said States: 9 Ky. Law Rep. 56; 20 Wash. 215; 43 S.W. 236; 19 Iowa 358; 21 Ia. 535, and cases cited. Attachment and garnishment are statutory remedies, and the execution of the writ must be in the manner prescribed by the statute. 5 Ark. 422; 4 Cyc. 582; 14 Am. & Eng. Enc. Law (2 Ed.), 756; Rood on Garnishment, § 269. The intention of the statute was to provide for the attachment of a fund in court when the object for which it is held has been accomplished, to indicate the manner of execution of the writ, and to broaden the scope of the remedy. Ubi supra; Rood on Garnishment, § § 8 and 9. A writ of garnishment is a writ of attachment, within the meaning of the statute providing for the attachment of a fund in court. 19 Ia. 358. 3 Dig. Ky. Rep. (Barbour), 276. Service of garnishment upon the defendant's debtor is only an attachment of the debt. 47 Ark. 221. Tangible property is the proper subject of direct attachment, and intangible property is properly subject to attachment by garnishment. 1 Shinn on Att. § 28; 39 Ark. 101; 51 Ark. 384. The surplus fund in the hands of the commissioner at or after the service of the writ was bound by the lien of the attachment. Kirby's Digest, § § 377, 3698. It belonged to the defendant Reid; otherwise the assignment under which appellee claims would be void. 3 Pom. Eq. Jur. (3 Ed.), § 1228; 11 Paige, Ch. (N. Y.), 129; 26 Ill.App. 372; 86 Va. 432; 18 Ark. 213; 2 Jones on Mortg. § 1684; Rood on Gar. § 174. One can not sell a fund in court as a fund. He can only transfer an equitable right to his net interest in the fund, when that may be adjusted. 42 Ark. 405.

A surplus fund in court which may be assigned may be attached or garnished. 74 N.Y. 148. The purpose of attachment is to give warning and to create a contingent lien on defendant's property to prevent alienation until the plaintiff can by appropriate proceedings obtain judgment and have such property applied to its satisfaction. 58 Ark. 252; 45 Ark. 276; 39 Ark. 101; 17 Ark. 497; 40 Ark. 535; Brown on Jur. § 149a; 4 Cyc. 572-3; 14 Am. & Eng. Enc. Law (2 Ed.), 842. See also 48 Ark. 354. For definitions: Surplus, Cyclopedic Dic.; 18 Ves. 466; 55 Am. St. Rep. 878. Funds, 43 N.J.Eq. 533.

The object of the statute was not to authorize the invasion of the jurisdiction of one court by another, but that service of the writ should operate as a warning to the officers of the court to make no disposition of a surplus sum of money, and to fix a lien thereon for the purpose of preventing alienation until the creditor can bring the matter by proper proceeding before the court having charge of the fund, by motion or petition. 18 Ark. 213; 21 Ia. 537; 49 Am. St. Rep. 495. And after judgment sustaining the attachment by further filing an intervention. 57 Ark. 450; 124 U.S. 131; 41 Ark. 283; 56 Ark. 481; Rood on Garnishment, § 28 note 57. When the purpose for which the fund was raised has been accomplished, the surplus should be brought into court for distribution, and, if necessary, a master should be appointed to ascertain the liens and amounts thereof. 11 Paige, Ch. (N. Y.), 129; 39 Ark. 253.

The court should have given appellant the benefit of the priority of his lien, and continued the cause until said lien was perfected by judgment sustaining the attachment, if necessary. Cases supra; 86 Ia. 86; 124 U.S. 155.

2. Where a chancery court is administering a fund obtained by a foreclosure sale of lands in which an attachment debtor has an interest, an attaching creditor may lay a writ of garnishment, issued from the attachment proceedings, in the hands of the agent or officer of the court appointed to execute the decree or having charge of the fund; and if it appears from the answer of the garnishee that there was, at the time of service of the writ or at any time thereafter, a fund or surplus sum of money in his hands or possession belonging to the debtor, it will be bound by the lien of the attachment after order of court directing such agent or officer to pay the same to the debtor or his assignee, where the assignment was made subsequent to the service of the writ; and such fund may be reached by an attaching creditor subsequent to such service by petition to the court for an order directing the agent or officer to hold the said surplus, and, after judgment sustaining the attachment, by filing an intervention in the foreclosure proceeding and making proof of the lien established by judgment sustaining the attachment. Rood on Garnishment, § § 27-35, inclusive; Ib. § 49; Waples on Att. § § 393, 396, 397, 398: Wade on Att. § § 421, 347; 1 Freeman on Ex. § 130; 20 Wash. 215; 62 Miss. 791; 19 Md. 233; 23 Md. 152; 1 Beasley (N. J. Eq.), 31; 4 Jones, Law (N. C.), 488; 57 Tex. 563; 74 N.Y. 148; 57 Ark. 450; 124 U.S. 153; 45 Md. 467; 14 Am. & Eng. Enc. Law (2 Ed.), 786-7; Ib. 835; Ib. 842; 58 Ark. 252.

Robertson & Martineau, for appellee.

1. The statute relied on by appellant is not an enactment authorizing the attachment of a fund in court, but simply a provision of the Code prescribing the method by which a fund in court, subject under the law to attachment, might be reached by attachment process.

2. Money or property in custodia legis is not subject to attachment or garnishment. 14 Am. & Eng. Enc. Law, 806, 817-826; 20 Cyc. 1022; 60 Ark. 213; 71 Ark. 269; 56 Ark. 1; Shinn on Att. § 46; Rood on Garnishment, § 27; Waples on Att and Gar. § 259; Kneeland on Att. § 410; Drake on Att. (7 Ed.), § 251; 12 L.R.A. 508; 10 L.R.A. 529; 9 Cent. Law Jour. 208; 49 L.R.A. 351. As to when a fund in court may be reached by attachment or garnishment, see 2 Shinn on Att. § § 502, 506, 517; 96 Ala. 183; 85 Am. Dec. 292; 54 Ib. 405.

3. Before confirmation of the sale, the money in the hands of the commissioner was the property of the purchaser; the defendant in the attachment had no interest therein. The fund was not garnishable until after confirmation of the sale and final decree of the court ordering distribution. 62 Miss. 791, and cases cited. There being nothing in the hands of the commissioner subject to garnishment at the time of service of the writ, nor any indebtedness to the defendant, Reid, no lien was created in favor of appellant. Reid had an equity in the sale of the lands when he assigned to appellee, and the assignment for a valuable consideration of his interest to appellee a court of chancery will protect on proper application. 4 Cyc. 8.

4. The process of garnishment does not reach to equitable claims. 14 Am. & Eng. Enc. Law, 761.

OPINION

BATTLE, J.

B. J. Brown instituted a suit against J. F. Reid in the Pulaski Chancery Court, to foreclose a mortgage executed by the defendant to the plaintiff to secure certain indebtedness. On the 29th day of March, 1905, the chancery court rendered a decree in favor of the plaintiff against the defendant for $ 3,241.80, the amount of the indebtedness secured, and ordered the land described in the mortgage to be sold to satisfy the judgment, and appointed F. A. Garrett, the clerk of the court, a commissioner to make the sale. On the 21st day of April, 1905, the day appointed for the sale, the commissioner offered the lands to the highest bidder at public vendue, and sold the same to W. H. Schaer for $ 3,485, which he paid to the commissioner.

On the 21st day of April, 1905, B. W. Green commenced an action, before a justice of the peace of Pulaski County, against J. F. Reid on a promissory note, and sued out an order of attachment; and on the 26th day of April, 1905, as a part of the attachment proceeding, sued out from before the justice of the peace writs of garnishment, alleging therein that F. A. Garrett, who was clerk of the Pulaski Chancery Court, and F. A. Garrett, the same person, as commissioner, was indebted to Reid, the defendant, for a surplus from a sale. The writs were directed to any constable of Pulaski County, and commanded him to summon F. A. Garrett, and F. A. Garrett as commissioner, as garnishee, to appear before the justice of the peace, on the 6th day of May, 1905, to answer what goods, chattels, moneys, credits or effects he may have in his hands or possession belonging to the defendant, and to answer such further interrogatories as may be propounded to him. The writs were served on the same day. Thereafter, on the same day, Reid made an assignment of all his right, title and interest in and to the purchase money that might accrue to him from the said sale to T. N. Robertson. On the same day Robertson filed a petition in the chancery court, in B. Brown v. J. F. Reid, stating that the assignment had been made to him, and asking that his rights be protected.

On the 28th of April, 1905, the commissioner, Garrett, reported to the court that he had sold the lands to Schaer, and that he (Schaer) had paid the purchase money, and asked that he be allowed $ 50 for his services; all of which the court approved, and on the same day the court allowed Schaer, the purchaser, $ 46.20, as a credit for taxes paid by him on the lands.

On the 2d day of May, 1905, commissioner Garrett, in pursuance of the order of the court, paid to Brown the amount due on his judgment against Reid out of the...