Holker v. Hennessey

• Decision Date: 23 November 1897
• Citation: 42 S.W. 1090,141 Mo. 527
• Parties: Holker, Appellant, v. Hennessey et al.; Pixler, Sheriff, Garnishee
• Court: Missouri Supreme Court

42 S.W. 1090

141 Mo. 527

Holker, Appellant, v. Hennessey et al.; Pixler, Sheriff, Garnishee

Supreme Court of Missouri, First Division

November 23, 1897

Appeal from Nodaway Circuit Court. -- Hon. C. A. Anthony, Judge.

Affirmed.

Frank Griffin and W. W. Ramsay for appellant.

(1) From the date of the arrest of Hennessey and Green by sheriff B. F. Pixler, the appellant, Holker, had a lien upon the estate of such criminals and upon the revolvers, watch diamond and $ 246 which the sheriff took into his possession and received from such prisoners, subject only to such lien if any, held by the State. R. S. 1889, sec. 4317. (2) The State has no lien upon the money and property which the garnishee (sheriff) received from the prisoners. The State's lien dates from conviction in such cases. R. S 1889, sec. 4264; McKnight v. Spain, use of Field, 13 Mo. 534. (3) The $ 246 in money found in garnishee's possession was not assigned, pledged, or in any manner disposed of. The State has no lien upon this money. The State can not procure a lien upon it before conviction of Hennessey and Green. R. S. 1889, sec. 4395; State ex rel. v. Ray County Ct., 52 Mo. 30; State v. Foss, 52 Mo. 416. (4) The last two items charged in garnishee's account, set up in answer to interrogatories, for the board of Hennessey and Green, in jail, while they were awaiting trial before giving bail, can not be deducted from the $ 246 in garnishee's hands. Strauss v. Ayers, 34 Mo.App. 255; Hurley v. Taylor, 78 Mo. 238; Bank v. Overall, 16 Mo.App. 515. (5) It can not be maintained that the money and property in the hands of garnishee was in custodia legis, and therefore free from the process of garnishment. Johnson v. Mason, 16 Mo.App. 274. (6) This money can not be applied in paying the expenses of the extradition from Nebraska. The State pays that expense. R. S. 1889, secs. 4323, 4324. (7) It may be here urged that under section 4317, Revised Statutes 1889, the injured party can not establish his lien against the estate of the criminal in this kind of proceeding; that he should bring some kind of a suit to establish his lien. Rischert v. Kunz, 9 Mo.App. 283; Hodo v. Benecke, 11 Mo.App. 393.

E. A. Vinsonhaler for respondent.

(1) As no instructions were asked or given in this case, there is nothing here to review. Miller v. Breneke, 83 Mo. 163. (2) This property is in custodia legis, and therefore not subject to garnishment. Richardson v. Anderson, 18 S.W. 195; McKnight v. Spain, 13 Mo. 534. (3) Section 4308, Revised Statutes 1889, providing for search of prisoners, directs that property so obtained "shall be taken into possession by the sheriff, and applied to the support of such person while in confinement." And this statute does not say persons convicted of crime, but persons "charged with an offense." And it is the approved practice, upon arrest, to always search the prisoner. No order is necessary, nor is it subject to garnishment. Bank v. McLeod, 65 Iowa 665; Bish. Crim. Proc., sec. 212; Mercantile Co. v. Bettles, 58 Mo.App. 384. (4) To permit garnishment in cases like this will produce great confusion. The sheriff, jailer, and every constable, town marshal, and policeman, would become liable on the process of garnishment from every court in the county for property taken from prisoners. (5) As to lien, there is none unless there is a conviction.

OPINION

Macfarlane, J.

The suit is against Hennessey and Green to recover $ 5,000, of which amount plaintiff charges that defendant 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, Otoe 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 habeas corpus proceedings in Nebraska, amounting to $ 411.75.

Garnishee continues: "That afterward 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 sum 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 the 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 afterward, 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 afterward, 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 nowise 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 was 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 afterward 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...