Johnson v. Mason

• Decision Date: 25 November 1884
• Citation: 16 Mo.App. 271
• Parties: J. B. JOHNSON, Respondent, v. ISAAC M. MASON, Appellant.
• Court: Missouri Court of Appeals

16 Mo.App. 271

J. B. JOHNSON, Respondent,

v.ISAAC M. MASON, Appellant.

St. Louis Court of Appeals, Missouri.

Nov. 25, 1884.

APPEAL from the St. Louis Circuit Court, LUBKE, J.

Affirmed.

KRUM & JONAS, for the appellant.

JOHN WICKHAM, for the respondent: The money deposted with the sheriff, not having been placed there virtute officii, was not in custodia legis, but was subject to garnishment.-- Lightner v. Steinagel, 33 Ill. 510-517; Pierce v. Carleton, 12 Ill. 358; Wheeler v. Smith, 11 Barb. 348; King v. Moore, 6 Ala. 160.

LEWIS, P. J., delivered the opinion of the court.

On January 30, 1882, Anak A. Rowland sued William J. Berkley in replevin for the recovery of certain personal property of the alleged value of $800. There was an order of delivery, to which the sheriff, the present defendant, made return that the defendant in replevin had deposited with him the sum of $400 to indemnify the plaintiff, and was therefore allowed to retain the property--the said sum of $400 to be held “subject to the order of court.” The defendant also gave a forthcoming bond to the sheriff in the penal sum of $750, with Bowman and Robertson as his sureties. Rowland afterwards moved against the sheriff as for a contempt, in failing to execute the order of delivery. In the attorney's affidavit filed with this motion, it is alleged that the replevin plaintiff had given a bond under Revised Statutes (sect. 3846), which was approved by the sheriff, but nothing of this appears elsewhere in the present record. The sheriff, having answered that the affidavit in replevin was made by a person other than the plaintiff, and that the defendant had given an indemnifying bond, together with other indemnity, was discharged from the rule against him. On March 19, 1883, an execution was issued on the present plaintiff's judgment against Berkley for $362.03, and placed in the hands of the coroner, who summoned the present defendant, sheriff, as garnishee. The garnishee answered, reciting the replevin suit and its continuing pendency, and denying any indebtedness or liability on account of the execution defendant. On November 5, 1883, judgment was rendered in the replevin suit against Berkley and his sureties. By an entry of record, the replevin plaintiff afterwards released the sureties and elected to pursue Berkley's property only.

On December 20, 1883, an order of the circuit court directed the garnishee to pay over to the present plaintiff the sum of $400, less $15, allowed him for his answer. A motion for a new trial was overruled and, on March 17th, 1884, a final judgment was rendered in favor of the plaintiff and against the garnishee, for $385 and costs.

We are not authorized to consider the attorney's affidavit in the contempt proceeding, as shown in this record, that a bond was given by the plaintiff in replevin. If there was such a bond, neither the instrument, nor its legal effect, is here authenticated as the law requires. So regarding the effect of the present record, there appears to have been a singular disregard, in the replevin suit, of plain statutory requirements. The Revised Statutes provide:

“Sect. 3846. The sheriff shall not receive or take such property until the plaintiff shall deliver to him a bond executed by two or more sufficient securities approved by the sheriff, to the effect that they are bound to the defendant in double the value of the property stated in the affidavit, for the prosecution of the action with effect and without delay, for the return of the property to the defendant, if return thereof be adjudged, and in default ef such delivery, for the payment of the assessed value of such property, and for the payment of all damages for...