Kuehn v. Faulkner

• Decision Date: 07 December 1925
• Docket Number: 19378.
• Citation: 136 Wash. 676,241 P. 290
• Court: Washington Supreme Court
• Parties: KUEHN v. FAULKNER et al. (AMERICAN SAVINGS BANK & TRUST CO. et al., Interveners.

241 P. 290

136 Wash. 676

KUEHN v. FAULKNER et al. (AMERICAN SAVINGS BANK & TRUST CO. et al., Interveners.

No. 19378.

Supreme Court of Washington

December 7, 1925

Department 2.

Appeal from Superior Court, King County; Ronald, Judge.

Suit by William Kuehn against William T. A. Faulkner and others wherein the American Savings Bank & Trust Company and others intervened. From an adverse judgment, intervenor named appeals. Affirmed.

Stratton & Kane, of Seattle, for appellant.

Stanley J. Padden an George F. Ward, both of Seattle, for respondents.

MACKINTOSH J.

One Faulkner entered into a business arrangement with MacCloy and another, and a couple of days thereafter MacCloy swore to a complaint charging Faulkner with larceny by obtaining money under false pretenses. A warrant was issued thereon and executed by the sheriff, who arrested Faulkner and placed him in jail. At that time there was taken from Faulkner's possession by the sheriff the sum of $4,555. This sum is now in the hands of the sheriff and is the bone of contention in this action.

Faulkner was indebted to the appellant, which, upon his arrest brought suit against Faulkner and had a writ of garnishment issued and served upon the sheriff for the purpose of subjecting the money in the sheriff's hands, taken from Faulkner, to the payment of the judgment. Thereafter Faulkner assigned all his right, title, and interest in the money to respondents.

The prosecuting attorney, determining that there was no merit in the criminal action, procured the dismissal of the criminal complaint against Faulkner without trial.

The trial court in this proceeding determined that the money in the sheriff's hands was not subject to the garnishment of the appellant, and from that judgment this appeal has been taken.

The one question for decision is whether personal property taken from the possession of a defendant in a criminal case by the arresting officer is subject to garnishment in the hands of the sheriff in a civil action. This question has been answered in both the negative and affirmative, but the great predominance of opinion as it is expressed in the decisions of the courts is in the negative. The reasons stated in the opinions holding to that view of the common law are 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 the criminal proceeding; that the possession of the officer was purely that of a bailee; and that the possession of the officer was in fact the possession of the prisoner.

As we view it, it is unnecessary to review these different decisions and the various grounds upon which they are based but rest our conclusion that the question must be answered in the negative, upon the broad ground that to allow such garnishment would be contrary to public policy, recognizing the danger of the abuse of criminal process by the establishment of any other rule. 28 C.J. 76; 1 Freeman on Executions, § 130a; 2 Freeman on Executions, § 255; Emmanuel v. Sichofsky (Dist. Ct. of Appeals, State of California, Third Dist.), filed October 21, 1925; ^[1] Holker v. Hennessey, 141 Mo. 527, 42 S.W. 1090, 39 L. R. A. 165, 64 Am. St. Rep. 524; Connolly v. Thurber-Whyland Co., 92 Ga. 651, 18 S.E. 1004; Robinson v. Howard, 7 Cush. (Mass.) 257; Commercial Exchange Bank v. McLeod, 65 Iowa, 665, 19 N.W. 329, 22 N.W. 919, 54 Am. Rep. 36; Hubbard v. Garner, 115 Mich. 406, 73 N.W. 390, 69 Am. St. Rep. 580; Bailey v. Wright, 39 Mich. 96; Pomroy & Co. v. Parmlee, 9 Iowa, 140, 74 Am. Dec. 328; Dahms v. Sears, 13 Or. 47, 11 P. 891; Ex parte Hurn, 92 Ala. 102, 9 So. 515, 13 L. R. A. 120, 25 Am. St. Rep. 23; Richardson v. Anderson (Tex. App.) 18 S.W. 195; Hill v. Hatch, 99 Tenn. 39, 41 S.W. 349, 63 Am. St. Rep. 822.

The same result, based upon the theory of custodia legis, is arrived at in Richardson v. Anderson, supra.

Some of the courts have allowed garnishment where the arrest was not collusive, but have disallowed it where the arrest was made for the purpose of securing the possession of the defendant's property by means of the arrest and garnishment. Closson v. Morrison, 47 N.H. 482, 93 Am. Dec. 459, is a case of this kind. But the ill effects of this distinction have been shown in some of the decisions heretofore cited.

It is argued, however, that, even conceding that the general rule is that garnishment is impossible, that rule has been abrogated by virtue of a statute in this state, and attention is called to section 664, Rem. Comp. Stat., which reads thus:

'A sheriff or constable may be garnished for money of

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