State ex rel. Kansas City Nat'l Bank v. Boothe

• Decision Date: 31 October 1878
• Citation: 68 Mo. 546
• Parties: THE STATE ex rel. THE KANSAS CITY NATIONAL BANK, Plaintiff in Error v. BOOTHE.
• Court: Missouri Supreme Court

68 Mo. 546

THE STATE ex rel. THE KANSAS CITY NATIONAL BANK, Plaintiff in Error

v.BOOTHE.

Supreme Court of Missouri.

October Term, 1878.

Error to Jackson Circuit Court.--HON. SAMUEL L. SAWYER, Judge.

John P. Peat for plaintiff in error.

The money in the hands of the sheriff, the proceeds of the attached property, was held by him in all respects as the property itself would have been, had it remained in specie, and was, therefore, subject to the execution. Sneadv. Wigman, 27 Mo. 126; Oeters v. Ahle, 31 Mo. 383.

After the dissolution of the attachment, the sheriff held the money in his hands as the bailee of Whitney, the owner. No order of court was necessary to ascertain or identify the money, or the amount, or the ownership. It was his duty to turn it over to the owner or his assigns. Being a bailment and not a debt, it was subject to execution, and it was the duty of the sheriff to levy. Wood v. Edgar, 13 Mo. 451; Drake on Attachment, §§ 505, 506; Means v. Vance, 1 Bailey (Law) 40; Wheeler v. Smith, 11 Barb. 345; State v. Fitzpatrick, 64 Mo. 185; State v Taylor, 56 Mo. 492.

This case is not like that of money collected upon an execution. There the sheriff is not bound to levy until he has made his return, as in that case the plaintiff in execution has no specific property in the money until the return is made. But here the property was Whitney's when attached; when sold, the proceeds were Whitney's, and continued to be Whitney's, and no order of court was necessary to perfect his right to their return to his possession by the sheriff. But even though it should be contended that this fund was exactly similar to money collected by the sheriff on execution in Whitney's favor, yet, when the special law and equity court made its order of May 26th, 1874, directing defendant, Boothe, to turn over said fund to Charles Whitney, it then became the duty of said Boothe, as sheriff, to levy relator's execution on said fund in obedience to the written demand of relator's attorneys at that time.

Bryant & Holmes for defendant in error.

Had the property remained in specie, the officer, after the dissolution of the attachment, would have become Whitney's bailee, by operation of law. State v. Fitzpatrick, 64 Mo. 185. But the property being sold prior to the attachment, and the proceeds mingled with the officer's own money, he became simply Whitney's debtor for the amount received. Adams v. Lane, 38 Vt. 640.

A debt is not subject to an execution directed to the debtor. Harrison v. Paynter, 6 M. & W. 387; Willows v. Ball, 5 B. & P. 376; Harding v. Stevenson. 6 H. & J. (Md.) 264; Fieldhouse v. Croft, 4 East 510; Adams v. Lane, 38 Vt. 640. Indeed, a debt can, in no case, be reached, except by garnishment, or trustee process as it is called in some of the other States. Clymer v. Willis, 3 Cal. 363; Dickinson v. Palmer, 2 Rich. Eq. (So. Car.) 407; Adams v. Lane, 38 Vt. 640.

It is true that Wag. Stat., p. 616, § 70, authorizes a voluntary payment on execution by the debtor of the defendant in the execution. But it has been held under the New York statute, of which ours seems to be a copy, that where the officer to whom the writ is directed is himself the debtor, a voluntary payment by him would not be authorized by the statute. Baker v. Kenworthy, 41 N. Y. 215.

HENRY, J.

On the 13th day of May, 1873, the Kansas City National Bank instituted a suit by attachment against Whitney & Clark. The sheriff, Boothe, the defendant, levied the attachment on personal property belonging to said Whitney, which, by order of the court, was on the 21st day of June, 1873, sold as perishable property under the statute, sec. 27, p. 187, and the proceeds of sale, $491.20, were deposited by Boothe in a bank to his credit on general account. On the 27th day of March, 1874, the attachment was dissolved, and a judgment rendered by the court in favor of the bank for $2,118.24, on which an execution was issued and delivered to said Boothe, with directions to levy the same on the money in his hands, the proceeds of said sale. This he refused to do, and the bank filed a motion asking the court for an order requiring Boothe to levy upon, and apply said money to its judgment. This motion was heard and disposed of on the 26th day of May, 1875, and it appearing to the court that on May 17th, 1874, Boothe had been garnished on an execution issued from the circuit court of Jackson county in favor of John T. Shortridge against said Whitney & Clark for $263.20, and that Whitney claimed $300 of the money in Boothe's hands as exempt from execution, said Whitney having, since the attachment was issued, married and become the head of a family, the motion was overruled.

On the same day the bank again demanded of Boothe, in writing, the levy of its execution on said money, and Boothe refused, and returned said execution unsatisfied.

In answer to interrogatories propounded to him by Shortridge, in the circuit court of Jackson county, Boothe on the 23rd day of September, 1874, set up the foregoing facts, and asked the court to make such order in the premises as would protect him. On March 16th, 1875, on its own motion, the bank was made a party to said garnishment proceedings, and asked for an order on Boothe directing him to apply said money to its execution. On May 27th, 1875, the issues in the garnishment proceedings were tried, and the court rendered judgment therein against Boothe in favor of Shortridge, for $324.40 and costs.

This is a suit by the relator, the bank, against Boothe and his securities, on his official bond, for the failure and refusal of Boothe to levy the bank's execution on the money in his hands as aforesaid.

The two principal questions for determination are: First, could the sheriff have levied plaintiff's execution on the money in his hands? Second, may not defendant rely upon the judgment of the circuit court in the garnishment proceeding, to which the bank was a party claiming said money, as res adjudicata?

1. EXECUTION--money in custodia legis.

There is no doubt, that under our statute and at common law, an execution could be levied on money. Turner v. Fendale, 1 Cranch 44. But, in that case, it was held that money in the hands of an officer not yet paid to the creditor, had not become his property, and that “a right to a sum of money in the hands of a sheriff can no more be seized than a right to a sum of money in the hands of any other person.” “Money in the hands of a sheriff collected on execution, is not a debt due to the plaintiff in the...