Richardson v. Anderson

• Decision Date: 20 January 1892
• Parties: RICHARDSON, Sheriff, <I>et al.</I> v. ANDERSON.
• Court: Texas Court of Appeals

Page 195

18 S.W. 195

RICHARDSON, Sheriff, et al. v. ANDERSON.

Court of Appeals of Texas.

January 20, 1892.

Appeal from Tarrant county court; W. D. HARRIS, Judge.

Writ of garnishment by A. J. Anderson against J. C. Richardson, garnishee. Knox intervened as claimant, and before the trial, with sureties, replevied the property in the hands of the garnishee. Judgment for plaintiff. Knox, sureties, and garnishee appeal. Reversed.

Bowlin & Bowlin, for appellants. F. M. Brantly, for appellee.

WHITE, P. J.

One Knox, who is one of the appellants in this case, was arrested by Richardson, another of the appellants, who was sheriff of Tarrant county, for carrying a pistol. According to the jail regulations in that county, Richardson, the sheriff, took from the possession of Knox, when he put him in jail, $930, and other sums of money, and certain warrants and checks, for safe-keeping during his incarceration. While the sheriff had said money and effects in his possession, belonging to Knox Anderson, the appellee sued out a writ of garnishment, and had the same served upon the sheriff. The sheriff, as garnishee, in his answer set up substantially the facts as above stated. Knox filed an intervention in the garnishment suit, and claimed— First, that the money was taken from him by the sheriff without his consent, and was in the sheriff's possession custodia legis, and, being in custodia legis, was not subject to garnishment; secondly, that the money and property taken from him by the sheriff at the time and place mentioned was taken unlawfully, violently, and by force, and against the will of the intervener, and that the sheriff was a trespasser, and that said money and property were taken by trespass, and, while it was thus unlawfully in the hands of the sheriff, the writ of garnishment was served upon him; third, his arrest, and the taking and detention of his property by the sheriff, was the result of a conspiracy between the sheriff and the intervener's creditors to have him arrested, and his money and other valuables taken off his person, and detained until the writ of garnishment could be served upon the sheriff by said creditors. To said answer of said garnishee and plea of intervention, appellee, Anderson, filed a general exception and answer controverting the same. The court sustained the general exceptions to the first and second subdivisions of the intervener's pleas, to which the intervener excepted; and overruled the general and special exceptions to intervener's third plea. Before the trial, appellant Knox, with sureties, replevied said money and property out of the hands of the sheriff. The case was tried before the court without a jury, and judgment was rendered against all the appellants, — that is, Knox and his sureties upon his replevin bond, and Richardson, the sheriff, for the sum of $223.10, the balance proved to be due from Knox to Anderson on a judgment, and for costs of suit,— and that appellant Knox take nothing by reason of his intervention. From this judgment this appeal is prosecuted.

In Pace v. Smith, 57 Tex. 555, it is said: "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, Attachm. c. 22; Freem. Ex'ns, §§ 129-133, — both referring to numerous authorities; Taylor v. Gillean,...