Holker v. Hennessey

• Decision Date: 23 November 1897
• Citation: 141 Mo. 527,42 S.W. 1090
• Parties: HOLKER v. HENNESSEY et al. (PIXLER, Garnishee).
• Court: Missouri Supreme Court

42 S.W. 1090

141 Mo. 527

HOLKER v. HENNESSEY et al. (PIXLER, Garnishee).

Supreme Court of Missouri, Division No. 1.

November 23, 1897.

APPEAL — AMOUNT INVOLVED — SHERIFF AS GARNISHEE — LIENS ON CRIMINAL'S PROPERTY.

1. The amount in dispute on appeal by plaintiff in garnishment is the difference between the amount claimed and the amount recovered.

2. Property taken by an officer from a prisoner is not subject to attachment at the suit of a creditor of the prisoner, if it was taken from him without authority; and it is not subject to attachment, at least till after conviction of the prisoner, where it is taken from him by authority of law.

3. Rev. St. 1889, § 5220, declaring that "no * * * officer charged with the collection of money shall, prior to return day of the * * * process upon which the same may be made, be liable to be summoned as garnishee," does not exclude the idea of an officer being exempt from garnishment for property which he takes from the person of a prisoner.

4. Rev. St. 1889, § 4317, declaring that the person injured by a crime "shall have a lien on the estate of the criminal from the time of his arrest subject to any lien granted by law to the state," does not authorize enforcement of the lien by garnishment.

5. The lien given by Rev. St. 1889, § 4317, declaring that the person injured by a crime "shall have a lien on the estate of the criminal from the time of his arrest subject to any lien granted by law to the state," is not enforceable till conviction; section 4264 giving the state a lien on the property of one charged with a crime, from the time of his conviction, for fines and costs which he is adjudged to pay, and section 4395 declaring that, whenever a person shall be convicted of a crime, he shall be adjudged to pay the costs.

Appeal from circuit court, Nodaway county; C. A. Anthony, Judge.

Suit by Henry Holker against Ed Hennessey and another, defendants, and Benjamin F. Pixler, sheriff, garnishee. Judgment for garnishee. Plaintiff appeals. Affirmed.

Frank Griffin and W. W. Ramsay, for appellant. E. A. Vinsonhaler, for respondents.

MACFARLANE, J.

The suit is against Hennessey and Green, to recover $5,000, of which amount plaintiff charges that defendants robbed him. In aid of the suit an attachment issued, and was placed in the hands of the coroner; and defendant Pixler, sheriff of Nodaway county, was summoned as garnishee. Garnishee made answer to the usual interrogatories as follows: "That at the date of service of process of garnishment he did not have, nor has he since received, any property, effects, or credits belonging to any of defendants, unless the following statement of facts should be held to show property in his hands belonging to defendants: That on the ____ day of ____, 1894, two persons, who gave their names as David C. Wilson and E. M. Hall, were apprehended by the police officers of Nebraska City, Ottoe county, Nebraska, upon a charge that they had committed grand larceny in Nodaway county, Missouri. Garnishee was informed by the officers that upon such arrest said officers took from the person of David C. Wilson $180, and from the person of E. M. Hall $66. That, pending issuance by the governor of the state of Nebraska of a warrant upon the requisition of the governor of the state of Missouri, said Wilson and Hall sued out a writ of habeas corpus to secure their release. That garnishee, to secure the detention of said parties, employed counsel and guards, and, the said parties having been denied their release by the court, garnishee paid the costs. That the following expenses were incurred." (Here follows an itemized statement of the expenses of the habeas corpus proceedings in Nebraska, amounting to $411.75.) Garnishee continues: "That afterwards these parties, under warrant from governor of the state of Nebraska, were returned to, and confined in, the jail of Nodaway county: D. C. Wilson, 54 days, at a cost of $27; E. M. Hall, 61 days, at a cost of $30.50, — when they gave bond for their appearance on the first day of November term, 1894, to answer an indictment now on file in this court. That said parties failed to appear as required, and their bonds were forfeited, and alias warrants issued for their arrest. That they are now fugitives from justice. That the sums of money said to be taken from the persons of said Wilson and Hall by the police officers aforesaid were turned over to this garnishee, and he is entitled to same, to reimburse him and the state for the expense so incurred. That said Wilson and Hall are not entitled thereto. Garnishee further states that he is not indebted in any manner to said Wilson and Hall. Having fully answered, garnishee asks to be discharged, with costs." To this answer, plaintiff replied: "That these defendants were on or about the 13th day of June, 1894, justly indebted to him in the sum of fifty-two hundred and thirty-three and one-third dollars, for and on account of having, at the county of Nodaway and state of Missouri, on the 13th day of June, 1894, feloniously stolen said sum of money from him, and having received the same from him by means of false pretenses. That on account of said felony the said Ed Hennessey, alias E. M. Hall, and the said John Green, alias David C. Wilson, were at the June term, 1894, of the Nodaway county circuit court, indicted. That afterwards, to wit, on the ____ day, ____, 1894, the garnishee, Benjamin F. Pixler, arrested said Green, alias Wilson, and said Hennessey, alias Hall, and placed them under arrest, for the commission of said felony, and after said arrest he received from said parties the sum of two hundred and forty-six dollars in money; one diamond pin, of the value of one hundred dollars; one gold watch, of the value of one hundred and fifty dollars; one revolver, of the value of ten dollars; one valise, of the value of five dollars; a roll of money, of the value of forty-two hundred dollars, — of the goods, chattels, and property of the said Ed Hennessey, alias E. M. Hall, John Green, alias D. C. Wilson, Mary Green, Mathew Reynolds, and William Gardner, alias John L. Gardner, alias Denver. That all of said property was in the possession of the garnishee at the time of the service of this summons on the said Benjamin F. Pixler. Plaintiff further states that though the said Hennessey, alias Hall, and the said Green, alias Wilson, were indicted for said offense aforesaid, and were arrested as aforesaid, they were afterwards, during the month of September, 1894, released from the Nodaway county jail by the garnishee herein, Benjamin F. Pixler, and they have since escaped from this state, and have not been brought to trial, or convicted of said offense. Plaintiff further says that from the date of the arrest of said parties as aforesaid this plaintiff had a just and lawful lien on the property aforesaid, so received by this garnishee, for the reparation and payment of his debt against these defendants. That all of said property was and is subject to the garnishment proceedings in this case, and is in no wise liable to the payment of the claims set forth in the answer of garnishee. Wherefore plaintiff asks judgment against the garnishee for the full value of said property, aforesaid."

There seems to be no denial of this reply, although the case was tried without objection on the part of plaintiff. No objection is now made to this omission, and we treat the case — as treated by the parties — as though a general denial had been filed. The issues were tried to the court without a jury. On the trial it was shown that plaintiff had recovered judgment against defendants for over $5,000; that garnishee was sheriff of Nodaway county; that, under a charge of grand, larceny from plaintiff, defendants were arrested in Nebraska by garnishee and the local officers of that state, and two revolvers, two valises, and a sum of money were taken from them; that defendants attempted, but failed, to secure their release under writs of habeas corpus; that garnishee paid the expenses incident to the arrest, defending the habeas corpus proceedings, and securing the extradition of the prisoners, which amounted to the sum named in the answer of garnishee; that the prisoners were brought to this state and indicted; that they afterwards gave bail, and never appeared to answer to the indictment, and their recognizance was forfeited by judgment of court, and the accused were still fugitives from justice. There was evidence of one witness who testified that garnishee told him, while in Nebraska, that he had taken $4,000 from defendants. Garnishee admitted that the officers making the arrest took from the prisoners $246 in money, two revolvers, and two valises. He claimed that one of the revolvers was given to him by the prisoners. He admitted that he had the other and the $246 in money still in his possession, but claimed that it was subject to the state's lien for payment of costs. The evidence showed that plaintiff furnished garnishee money to pay the costs incurred in making the arrest, and in all other proceedings in securing the return of the prisoners to this state. There was evidence tending to prove that Judge Dawson received a gold watch and a diamond pin as security for his fee of $300 for legal services in defending the prisoners; that $200 was afterwards paid, and the diamond pin, valued at $150, was delivered to garnishee to be held as security for the balance; that, after forfeiture, garnishee paid Judge Dawson the balance of his fee, and retained the pin. Judge Dawson testified that he received the watch and pin from a woman claiming to be the wife of defendant Green.

The finding and judgment of the court are as follows: "The court finds that the defendant has in his possession a revolver worth $15. Ordered, that the garnishee deliver the same into court, and, upon said delivery, is entitled to his discharge; and the court finds for garnishee as to other matters claimed. And now...