Pace v. Smith

• Decision Date: 10 October 1882
• Docket Number: Case No. 1315.
• Citation: 57 Tex. 555
• Parties: A. G. PACE ET AL. v. J. M. SMITH.
• Court: Texas Supreme Court

57 Tex. 555

A. G. PACE ET AL.

v.J. M. SMITH.

Case No. 1315.

Supreme Court of Texas.

Oct. 10, 1882.

APPEAL from Hunt. Tried below before the Hon. Green J. Clark.

The opinion states the case.

Mathews & Neyland and E. W. Terhune, for appellant.

I. The attachment having been quashed in the case of Schneider & Davis v. Smith, the money was no longer in custodia legis. The attachment in the original case of Schneider & Davis v.

Smith was quashed, and the money held under it was ordered paid to the defendant. Gasquet v. Collins & Campbell, ante, p. 340.

II. If the money was not in custodia legis, it was subject to garnishment. Drake on Attach. (4th ed.), §§ 508, 509; Dunlap v. Patterson Fire Ins. Co., 30 Am. Rep., 283et seq.

III. A process by virtue of which money is held having been satisfied or quashed, the money remaining in the hands of the officer belongs to the defendant, and must be paid over to him, unless the officer is prevented from doing so by legal process. Hamilton v. Ward, 4 Tex., 367;Walton v. Compton et al., 28 Tex., 569; Gasquet v. Collins & Campbell, ante, p. 340; Drake on Attach., §§ 508, 509; Dunlap v. Patterson Fire Insurance Co., 30 Am. Rep., 283et seq.

IV. The clerk of a court of record having money in his hands by virtue of legal process is governed by the same rules as other officers. But when, from any cause, the money is ordered paid to the defendant, the clerk becomes a debtor to the defendant to the amount in his hands, which is due on demand, is assignable, and therefore subject to garnishment. Drake on Attach., § 509; Dunlap v. Patterson Fire Ins. Co., 30 Am. Rep., 283et seq.

Perkins, Gilbert & Perkins and Uptergrove, for appellee.

I. Money once in custodia legis cannot be withdrawn therefrom except by due administration of law. Drake on Attach., §§ 493-4; Brooks v. Cook, 8 Mass., 246;Bivens v. Harper, 59 Ill., 21;11 Me., 185;11 R. I., 116;2 Har. (Del.), 349;15 Ala., 66;1 Cranch, 117;2 Hayw. (N. C.), 171.

II. Money obtained by the sale of attached property is returned into court and is in custodia legis, and is deposited with the clerk simply for safe keeping. R. S., art. 174; Id., arts. 1458-1460; People ex rel. Tremper v. Brooks, 29 Am. Rep., 534; note under Hardy v. Tilton, 28 Am. Rep., 35.

III. The attachment being quashed, the law provided that the money should be paid to appellee. R. S., art. 182.

IV. This being the mode provided by law for the withdrawal of the money from the custody of the law, the money remained in such custody until the law was obeyed. Taylor v. Gillean, 23 Tex., 514;Dawson v. Holcomb, 13 Am. Dec., 618;3 Ired., 365; Sayles' Texas Practice, secs. 365, 390.

V. To that part of the fourth proposition which says, “But when from any cause the money is ordered paid to the defendant, the clerk becomes a debtor to the defendant to the amount in his hands,” etc., we have this objection: First. Money in the hands of the clerk is held by him in his official capacity, and not individually. R. S., arts. 1458-1460; Freemont v. Cruppers, 10 Cal., 211. The order to pay out is to him in his official capacity, and not individually. R. S., art. 182. Upon his failure to pay over the money, the defendant would have a right of action against him officially. R. S., art. 1460. His duty to pay the money upon the order of the court is an official duty, and not an individual debt of the kind here suggested by appellants. R. S., arts. 182, 1458; People ex rel. Tremper v. Brooks, 29 Am. Rep., 534.

VI. Money in custodia legis is not subject to garnishment, and the answer showing that the money was held by the clerk in his official capacity, and no other reason being given for a failure to pay over, except the service of a writ of garnishment, it was subject to exception.

BONNER, ASSOCIATE JUSTICE.

On December 14, 1881, Schneider & Davis instituted suit in the district court of Hunt county against J. M. Smith, and at the same time sued out a writ of attachment. This was executed by levying upon certain personal property belonging to Smith, which, being perishable, was, by order of the court, sold by the sheriff of Hunt county. The net proceeds of this sale, $413.94, was, as required by statute, deposited with A. G. Pace as the clerk of said court.

Subsequently, in February, 1882, on motion of defendant Smith, the attachment was quashed, and the money ordered to be paid over and delivered to him.

The present suit is one of mandamus, brought by Smith, the defendant in the attachment suit, against Pace, the clerk, to compel him to pay over this money as ordered by the court, alleging in addition to the above facts, that Pace had failed, neglected and refused to pay over the same after demand therefor.

Pace answered that he had been served with a writ of garnishment which had issued out of said court in the above stated case, by Schneider & Davis. That he then had, and still has, the money in his possession. The original suit was still pending. Schneider & Davis sought to intervene in the mandamus suit.

On the final hearing a demurrer was sustained to the answer of Pace and to the petition of intervention of Schneider & Davis, and the same were stricken out, and a peremptory writ of mandamus ordered, requiring Pace to pay over to Smith said sum of $413.94. To which judgment both Schneider & Davis and Pace excepted and prosecute this appeal.

The statute requires the proceeds of such sales to be paid by the sheriff to the clerk. R. S., art. 174. That he seal up the identical money in a secure package, and deposit it in some safe or bank vault, subject to the control of the court; and if still on hand at the end of his term of office, that he turn it over to his successor. Id., arts. 1458-9. It is further provided, that, if the attachment be quashed or otherwise vacated, the court shall make the necessary order restoring the property to the defendant. Id., art. 182.

Whether the money in the hands of Pace as district clerk was so in custodia legis as not to be subject to the process of garnishment, is the question presented for our determination in this case.

I am instructed by a majority of the court to answer this question in the affirmative.

The general rule, that property in the custody of the law is not subject to garnishment, is too well settled upon authority to be questioned. Drake on Attachments, ch. 22; Freeman on Executions, §§ 129-133, both referring to numerous authorities; Taylor v. Gillean, 23 Tex., 508;Edwards v. Norton, 55 Tex., 405. This, beside other officers, includes receivers, assignees in bankruptcy, disbursing officers, sheriffs, clerks, executors, administrators and guardians. The general principle underlaying this doctrine is, that “no person deriving his authority from the law, and obliged to execute it according to the rules of law, can be holden by process of this kind.” Brooks v. Cook, 8 Mass., 246.

This rule is based, in part at least, upon the confusion and conflict of jurisdiction which might ensue if such property is subject to a different process from that under which it is held; and the inconvenience, cost and possible risk which would be incurred if parties, who have no personal interest in effects held by them officially, should be subject to such process. The reason of the rule as applied to executors and administrators is thus stated in Shewell v. Keen, 2 Whart., 339: “An executor or administrator is, to a certain extent, an officer of the law, clothed with a trust to be performed under prescribed regulations. It would tend to distract and embarrass these officers if--in addition to the ordinary duties which the law imposes, of themselves often multiplied, arduous and responsible--they were drawn into conflicts created by the interposition of creditors of legatees, and compelled to withhold payment of legacies without suit; to suspend indefinitely the settlement of estates; to attend perhaps to numerous rival attachments; to answer interrogatories on oath, and to be put to trouble and expense for the benefit of third persons, no way connected with the estate, nor within the duties of their trust.”

Some of these reasons might well be applied to garnishments against district clerks, and the additional reasons of the embarrassments which would arise from a failure to make answer in due time, or by reason of an insufficient answer; or which might arise in the event the garnishment proceedings might be pending when their terms of office expired. Another reason, and which has much weight with one member of the majority of the court, is, that, as the writ of attachment was quashed, it may be presumed that the same was irregularly or wrongfully sued out, and that the plaintiffs in the attachment suit should not be permitted to take advantage of their own wrong. That having caused the property to be improperly taken from the possession of the defendant Smith, they should not be permitted to follow this up by having the proceeds garnished. That the judgment of the court under the law attempted to correct this wrong by ordering a restitution of the property, and neither Schneider & Davis nor any one else should be permitted to defeat this purpose.

The above are substantially the considerations which induce the majority of the court to an affirmance of the judgment. The individual views of the writer lead to a different conclusion.

The general rule is fully admitted; the difficulty arises in its application. It is believed that the circumstances of this case take it without this general rule, and hence that it should not govern.

In the case of receivers, who are appointed generally by the court to take charge of property pending litigation, and to hold it subject to the order of the court, their possession, being derived solely from their appointment by the court, is the possession of the court itself until they are finally discharged; and hence the property is strictly in custodia legis.

The district clerk into whose hands the money in this case...