Marvin v. Hawley

• Decision Date: 31 October 1845
• Parties: WILLIAM O. MARVIN v. SAMUEL W. HAWLEY AND OTHERS.
• Court: Missouri Supreme Court

9 Mo. 382

WILLIAM O. MARVIN

v.SAMUEL W. HAWLEY AND OTHERS.

Supreme Court of Missouri.

October Term, 1845.

ERROR TO ST. LOUIS CIRCUIT COURT.

DRAKE, for Plaintiff. 1. There was no attachment of the specific money collected by the sheriff, the same not having been seized by the attaching officer and kept in his custody. Rev. Laws of 1835, § 6, p. 77. 2. The money could not be attached in the sheriff's hands, because: First. The money collected by the sheriff is not the property of Marvin, until paid over to him. Dubois v. Dubois; Turner v. Fendall; Dawson v. Holcomb; Thompson v. Brown; Reddick v. Smith; Wilder v. Bailey; Pollard v. Ross; Zurcher v. Magee. Second. Money collected by a sheriff on execution, is in custodia legis, and therefore not attachable. Dawson v. Holcomb; Thompson v. Brown; Staples v. Staples; Reddick v. Smith; Wilder v. Bailey; Zurcher v. Magee. Third. The sheriff is commanded by the execution to have the money in court, on return day of the writ to be paid over to the plaintiff, and no process of this kind shall be allowed to interfere with the performance of this duty. Dawson v. Holcomb; Zurcher v. Magee; Turner v. Fendall. Fourth. Judgments of courts of justice shoud be effectual, which they frequently cannot be, if money levied in pursuance of them can be attached. Alston v. Clay. Fifth. The execution is finis et fructus of legal proceedings, and an attachment shall not be permitted to defeat its office, by preventing the payment of money collected under it. Wilder v. Bailey. Sixth. To allow the course of legal process to be interfered with in such a mannner, must of necessity protract litigation, and produce continual conflict of jurisdiction. Reddick v. Smith; Ross v. Clark, 1 Comyn's Dig., title Attachment, D.; 2 Bac. Abr., title Customs of London, H.; Turner v. Fendall, 1 Cranch, 117; First v. Miller, 4 Bibb, 311; Ross v. Clarke, 1 Dallas, 354; Dubois v. Dubois, 6 Cowen, 494; Crane v. Freese, 1 Harrison, N. J. 305; Conant v. Bicknell, 1 Chipman, Vt. 50; Allston v. Clay, Haywood, N. C. 171; Dawson v. Holcomb, 1 Ohio, 135; Reddick v. Smith, 3 Scam. 451; Thompson v. Brown, 17 Pick. 462. 3. A sheriff cannot be summoned as garnishee in respect of money collected by him on execution. All the reasons advanced in support of the second point apply equally to this. The following additional reasons are urged: First. In order to charge a garnishee, it is necessary either that the defendant have a cause of action against him--that is, that the garnishee should be his debtor--or that the garnishee should have in possession personal property of the defendant. When Milburn was summoned as garnishee, we have seen that he had no property or effects of Marvin in his possession, and it is certain that Marvin had no cause of action against him. Maine F. & M. Ins. Co. v. Weeks; Wilder v. Bailey; Pollard v. Ross. Second. Money collected by an officer on execution is not a “credit” in the hands of an officer. Credit is the correlative of debt; so that the existence of a debt on the one part, is necessary to constitute a credit on the other. If there be no debt, there is no credit. The officer collecting money on execution, is in no sense whatever a debtor of the plaintiff in execution. Wilder v. Bailey; Lupton v. Cutter. Third. An officer, deriving his authority from the law, and obliged to execute it according to the rules of law, cannot be holden by process of this kind; because the law will not tolerate such interference in the discharge of his duties. Wilder v. Bailey, 3 Mass. 289; Pollard v. Ross, 5 Mass. 319; Chealey v. Brewer, 7 Mass. 259; Maine F. & M. Ins. Co. v. Weeks, 7 Mass. 438; Brooks v. Cook, 8 Mass. 246; Lupton v. Cutter, 8 Pickering, 303; Staples v. Staples, 4 Greenleaf, 532; Adams v. Barrett, 2 N. Hamp. 374; Zurcher v. Magee, 2 Ala. (new series) 253; Pawley v. Gaines, 1 Tenn. 208; Overton v. Hill, 1 Murphy, N. C. 47.

In order to exhibit the applicability of the decisions quoted, the language of the attachment laws of as many of the States as could be obtained is subjoined, so far as to designate what each State was subject to attachment. Maine and Massachusetts--“Goods, effects and credits, in whose hands or possession soever they may be.” New Hampshire--“Whoever shall have in his possession any money, goods. chattels, rights, or credits, of any debtor, shall be deemed and taken to be trustee of such debtor.” Vermont--“Any creditor may cause such person. or persons, having such money, goods, chattels, rights, or credits, to be summoned as trustee, or trustees. of such absconding or concealed debtor.” New Jersey--“The rights and credits, moneys and effects, goods and chattels, land and tenements of such debtor. wheresover the same may be found.” North Carolina, Tennessee and Alabama--“The estate of the debtor, wherever the same may be found. in the hands of any person or persons, indebted to, or having any of the effects of, the defendant.” Ohio--“Lands, tenements, goods, chattels, rights, credits, moneys and effects, wheresoever they may be found.” Illinois-- “Lands, tenements, goods and chattels, rights and credits, moneys and effects, of what nature soever, in whosesover hands or possession the same may be found.

LESLIE & LORD, for Defendants. 1. Under the attachment law of this State, an attachment can be served upon the credits of the defendant in attachment, in the hands of the sheriff; he having collected the money for the defendant, it is a credit in his hands, and he thereby becomes the debtor of the defendant, and may be summoned as a garnishee. Section 6, Rev. Stat. 1835, p. 77. Amongst the earliest decisions touching this subject, will be found those of Massachusetts. It is now nearly thirty years since the Supreme Court of that State, in the case of Wilder v. Bailey & Dorling, 3 Mass. 289, decided that a sheriff could not be held as the trustee of the judgment creditor. This case was regarded as having settled the construction of the statute under which it was made, and has been followed by all the subsequent decisions upon the same subject in that State. By a careful examination of the statute, it will be seen that it was intended to give a remedy to creditors against a particular class of debtors; that is, against such debtors as had fraudulently intrusted and deposited their “goods, effects and credits,” in the hands of others, to prevent their being attached by the ordinary process of law. Justice Sedgwick, in this case, after reciting the title, preamble and body, of the act, in effect says: “That unless the goods, effects and credits of the debtor, are deposited and intrusted, by the debtor himself, in the hands of the person sought to be held as trustee, they will not be attachable.”

Chief-Justice Parsons, in the same case, says: “The statute speaks of goods, effects and credits intrusted to and deposited with others, so that they cannot be attached by the ordinary process of law, a language implying an agency or privity of the debtor, to place his property beyond the reach of ordinary attachment.”

And again, in the case of Chealy et al. v. Brewer and Seaver, 7 Mass. R. 259, it is said: “That the remedy intended by the statute was to enable creditors to obtain satisfaction of their debts out of the goods, effects and credits of their debtors, ‘intrusted and deposited’ in other hands, so that they could not be attached by the ordinary process of law.”

And after referring to the particular provisions of the act, Judge Sedgwick says: “From hence it clearly appears that the goods attachable by this process must have been previously intrusted to and deposited in the hands of the trustee by the debtor.”

The remedy then sought by the Massachusetts statute was to enable creditors to reach “goods, effects and credits” “intrusted and deposited” with others by the agency or privity of the debtor, out of the reach of the ordinary process of attachment; and inasmuch as money collected by the sheriff for the debtor could not be said to be “intrusted or deposited” with him by the debtor, the court very properly decided that he could not be held as a trustee. It was not the case provided for by law, and this we apprehend was the real reason for the decision in that State. It must also be borne in mind that an attachment against the property of debtors in Massachusetts issues in the first instance, attaching the property of the defendant, and holding it to satisfy any judgment which the plaintiff may recover. Howe's Mass. Pr. 155.

The remedy intended to be given by the 1st subdivision of section 1, of the law concerning Attachments, Rev. Stat. 1835, was to make the property and credits within this State, of a debtor whose residence was elsewhere, liable to attachment. The remedy sought by the statute of Massachusetts, and that sought by the statute of this State, is not the same. Decisions, therefore, under the Massachusetts statutes, can be no guide in settling a question arising under the peculiar phraseology of our own. Nor do the cases in the United States courts touch this case In the case of Turner v. Fendall, 1 Cranch, 117, it was decided. “that money collected by an officer is not, while in his hands, the property of the creditor; that is, the creditor has no property in the specific pieces of money collected, and therefore the money cannot be levied upon as the property of the plaintiff in the execution;” and there is probably no case, either in the State or Federal courts, that goes beyond this. In Massachusetts, as well as in some of the other States, the judges have said that the sheriff...