Weaver v. Davis
| Decision Date | 31 January 1868 |
| Citation | 47 Ill. 235,1868 WL 4969 |
| Parties | JOHN WEAVER, Adm'r, etc.v.HOWELL DAVIS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
AGREED CASE from the Circuit Court of Madison county.
The opinion states the case.
Messrs. DALE & BURNETT, for the plaintiff.
Messrs. GILLESPIE & SPRINGER, for the defendant.
The only question presented by this record is, can a special master in chancery be subjected to a garnishee process, so that money may be reached, which he, as such special master, has in his hands, being proceeds of a sale of land in a partition suit, and belonging to the defendant in the attachment, and which the court appointing him had ordered him to pay over to the defendant? The circuit court decided he was not s?? subject, and discharged the garnishee. To reverse this decision, the cause is brought here by agreement, and on the part of the attaching creditor, it is insisted, as the statute in relation to attachments, makes land, tenements, goods, chattels, rights, credits, money, and effects of the debtor liable to attachment, in whose hands or custody they may be found, and as the land out of which the money proceeded, was liable to attachment, even while the suit in partition was pending, it is unreasonable to hold, when it was converted into money by a judicial sale, that the money should not be liable, especially, after it has been ordered by the court to be paid over to the party entitled--the defendant in the attachment.
He also insists, that although the money may have come to the hands of the master as an officer of the law, yet, when the court ordered him to pay it over to the defendant in the attachment, a personal liability was created, the money becoming, thereby, his property, and was liable, in the hands of the master, to the attachment. He likens it to a surplus in the hands of a sheriff, after satisfying an execution; that the master was bound to pay over to the defendant this money immediately, the court having taken final action upon it; that the construction contended for by the debtor would narrow down a broad and comprehensive law intended for the benefit of creditors, and designed to afford them ample remedy, to such small limits, as to deprive them, in a great measure, of its benefits.
On the other side, it is insisted, that notwithstanding the order of the court, the money was still in the possession of the officer of the court, and under the control of the court; that the order of the court was, that the master should pay over the money to Davis, and this must be obeyed to the letter, and that it would be no legal excuse for the master to report to the court, on a rule being served on him, by the person entitled to the money, to show cause why he had not paid it over, that it had been taken out of his hands by garnishee process, issued from the common law side of the court; that this would produce collision and confusion, and should not be permitted, and the doctrine in the case of sheriffs is referred to, and relied on, and that the rule is as applicable to this officer as to a sheriff, and more so, as he is the special agent of the chancellor in executing his decree.
This court, in the case of Lightner v. Steinagel, 33 Ill. 515, had occasion to examine the doctrine on this subject as recognized by the best writers, and the courts of the country, and reached the conclusion, that public policy required that a sheriff should not be charged on a garnishee process, in respect to any funds or property held by him by virtue of his office, but if anything arose to change his liability from an official to one personal, he would be amenable to the process.
The reason is, the money is in the custody of the law and subject to the control of the court from which the execution issued, and to allow it to be taken on such process, might bring different tribunals into collision, and cause much embarrassment to officers concerned in the final execution of process. The specific money in the hands of the sheriff was not considered the property of the party claiming it, until paid over to him.
In the case of Pierce v. Carleton, 12 Ill. 358, this court held that a surplus remaining in the hands of the sheriff, after satisfying the plaintiff's execution, was liable to this process, and the reason given was, when the amount due on the judgment was returned into court, or paid over to the plaintiff, the execution had accomplished its office, and if there was a surplus it was the duty of the officer to pay it over to the defendant. It was then not strictly in the custody of the law, but the officer held it as so much money had and received for the use of the defendant.
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...v. Hyde, 10 Mo. 374; Anderson v. Patty, 168 Ill.App. 151; Robertson v. Detroit, 152 Mich. 612, 116 N.W. 196, 15 Ann. Cas. 131; Weaver v. Davis, 47 Ill. 235. receiver or master in chancery after decree of the court for payment of the fund, held the fund prior to the order as an officer of th......
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...Gibbons v. Johnson, 3 Scam. 61. Only when the official's liability becomes changed to a personal one is he subject to garnishment: Weaver v. Davis, 47 Ill. 235. No action could be maintained by the heir for the money until after an order of distribution: Neubrecht v. Santmeyer et al. 50 Ill......
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...inconsistent with the views herein expressed; and the several state court authorities cited holding a contrary doctrine, notably Weaver v. Davis, 47 Ill. 235, and Dunsmoor Furstenfeldt, 88 Cal. 522, 26 P. 518, 12 L.R.A. 508, 22 Am.St.Rep. 331, are not in accord with the preponderance of aut......
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... ... Carleton, 12 Ill. 358, 54 Am. Dec. 405;Lightner v. Steinagel, 33 Ill. 510, 85 Am. Dec. 292); or, as stated in Weaver v. Davis, 47 Ill. 235, the sheriff holds such surplus merely as a trustee for the debtor, which the latter may recover in an action against the ... ...