People ex rel. Tremper v. Brooks

• Decision Date: 31 January 1879
• Citation: 40 Mich. 333
• Court: Michigan Supreme Court
• Parties: The People ex rel. Daniel Tremper v. George B. Brooks

40 Mich. 333

The People ex rel. Daniel Tremper v. George B. Brooks

Supreme Court of Michigan

January 31, 1879

Submitted January 15, 1879

Appeal from Saginaw. Submitted January 15. Decided January 31.

Order was correct and must be affirmed with costs.

J. Z Richards for relator. No one holding property by order of a court can be garnished, nor is the property subject to attachment, Brooks v. Cook, 8 Mass. 246; Thayer v. Dudley, 3 Mass. 296; Dubois v. Dubois, 6 Cow. 494; Barnes v. Treat, 7 Mass. 271; Lightner v. Steigle, 33 Ill. 510; Drake on Attachment §§ 494, 496; Shewell v. Keen, 2 Whart 332; Cook v. Rogers, 31 Mich. 391; Voorhees v Sessions, 34 Mich. 99.

William G. Gage and William Gillett for respondent. An order adjudging a receiver guilty of contempt in not paying over money, is appealable. People v. Jones, 33 Mich. 303. A sheriff holding a surplus after execution sale may be garnished, Pierce v. Carleton, 12 Ill. 358; an officer having the custody of funds may be garnished whenever his liability changes from an official to a personal character, Weaver v. Davis, 47 Ill. 235; an administrator who had been ordered to pay money to a creditor of the estate was subject to garnishment in an action against the creditor, Richards v. Griggs, 16 Mo. 416; in California, funds in the hands of a receiver appointed in proceedings for the dissolution of a partnership, are subject to attachment at any time before a final decree of dissolution, Adams v. Woods, 9 Cal. 24; money held by the trustee of a non-resident may be attached by the creditors of the cestui que trust after he has been ordered to pay it over, Williams v. Jones, 38 Md. 555; a justice to whom money has been paid on a judgment can pay it over to a plaintiff in garnishment after the time for appeal has passed, Griffin v. Potter, 27 Mich. 166. After an order of court to pay over money, the officer holding it becomes the agent of the party to whom it was to be paid, and is liable to garnishment by the latter's creditors, Adams v. Barrett, 2 N.H. 374; Wilder v. Bailey, 3 Mass. 289; Parks v. Cushman, 9 Vt. 320.

Campbell, C. J. The other Justices concurred.

OPINION

Campbell, C. J.

Brooks having been ordered as receiver to pay over certain moneys to relator within forty days, refused on application within that time to pay it, claiming the full time. After its expiration, he refused to do so on the ground that on the same day he had been served with garnishee process issued by a justice of the peace, returnable eleven days thereafter. On an order to show cause why he should not be attached, he showed that under this garnishment he had made a disclosure of the facts before the justice, before whom no further action was had, and respondent still held the money. On this showing, he was ordered to pay over the money to relator or stand committed. From this order he appeals.

The custody of a receiver is the custody of the court, and the law is well settled that no one can lawfully sue him without leave of the court which appointed him. It would lead to great confusion if such an officer were to be subject or were to be at liberty to take the funds in his official custody into any other tribunal, which could have no power to discharge him, to settle his accounts, or to punish him for collusion. If justice requires leave to sue, the court it may be presumed will grant it. But the cases are substantially uniform in holding that he cannot be garnished or otherwise reached without leave. High on Injunctions,...