Weicht v. Automobile Banking Corp.
| Decision Date | 18 January 1946 |
| Docket Number | 4136 |
| Citation | 45 A.2d 396,158 Pa.Super. 430 |
| Parties | Weicht, Appellant, v. Automobile Banking Corporation |
| Court | Pennsylvania Superior Court |
Argued November 20, 1945.
Appeal, No. 196, Oct. T., 1945, from decree of C. P Franklin Co., April T., 1945, No. 142, in case of Charles C Weicht v. Automobile Banking Corporation, a foreign corporation.
Foreign attachment proceedings.
Rule to dissolve attachment made absolute, opinion by Davison, P. J Plaintiff appealed.
A. J. White Hutton, for appellant.
John McD. Sharpe, for appellee.
OPINION
This appeal is brought by the plaintiff who commenced an action in assumpsit by causing a writ of foreign attachment to be issued. The writ was dissolved by the court below because the property sought to be attached was in the hands of the sheriff under a writ of de retorno habendo.
The defendant and appellee, a Delaware corporation, hereinafter called the corporation, instituted an action of replevin against the plaintiff to recover the possession of an automobile. Plaintiff filed his bond in the sum of $ 2000 and retained possession. The corporation was granted a rule for judgment for want of a sufficient affidavit of defense, and after argument the rule was made absolute and judgment entered for the corporation. In execution of the judgment, the corporation issued a writ of de retorno habendo. On April 19, 1945, at 8:30 A.M., the sheriff served the writ and took possession of the automobile. Two hours later, at 10:30 A.M. the writ of foreign attachment was issued at plaintiff's instance and received by the sheriff. The automobile was still in the sheriff's custody, not having been returned to the corporation. The sheriff's return to the writ of foreign attachment answered that the automobile was in the sheriff's custody by virtue of the writ of de retorno habendo. On the corporation's motion, the learned court below dissolved the writ of foreign attachment, holding that the property was in the custody of the law and therefore not liable to attachment.
It is well settled and recognized by the weight of authority that property in the custody of the law is not subject to attachment. 10 Standard Pa. Practice, Attachment, § 56, p. 255; 7 C.J.S. Attachment § 88, p. 258; 4 Am. Jur., Attachment and Garnishment, § 387, p. 797. The rule was very early established in Pennsylvania in Ross v. Clarke, 1 U.S. 354, 1 Dallas 354, 1 L.Ed. 173, where it was held that money paid into the hands of the prothonotary was ". . . to be considered in the same state as if it had been paid into the hands of the sheriff . . ." and was not the subject of a foreign attachment. See also Riley v. Hirst, 2 Pa. 346, and Bulkley v. Eckert, 3 Pa. 368. Appellant, however, contends that the general rule is not applicable to the instant case. It is his theory that after the final judgment of the court distributing the property to the corporation, the property was constructively in the hands of the corporation and the sheriff held it as the corporation's agent. We do not agree with this contention.
"The sheriff is an officer of the court, charged with the duty of executing the process of the court. . . . He is no more the agent of the city or school district than he is of the execution creditor . . .:" (Italics supplied.) Braun v. De Rosa, 128 Pa.Super. 318, 327, 194 A. 514, 518. Property in the hands of the sheriff on an execution writ remains in custodia legis until the final step is taken and the property is delivered to the judgment creditor. As long as the property is in custodia legis, it cannot be attached. The rationale of this decision is supported by the reason for the general rule which is clearly set forth in Bulkley v. Eckert, supra.
The decree is affirmed.
DISSENT BY: RENO
Final judgment in replevin had been rendered, no appeal had been taken, and the writ of de retorno habendo had been executed by the sheriff who held the automobile subject to appellee's demand. The writ had become virtually functus officio, and the law was relaxing its custodial grasp upon appellee's property. Yet, disregarding what I think are the realities of the case, the Court holds that the automobile was still in custodia legis. The end-result is that a Pennsylvania litigant is compelled to pursue appellee to the Delaware courts unless, perchance, appellee is registered in this Commonwealth, and this is improbable. Appellant's right to another writ is illusory for, under this decision, he must time his action with such precision that the writ is lodged with the sheriff in the momentary interval between the sheriff's manual delivery and the swift departure of appellee's agent with the automobile to parts unknown.
"In custodia legis" is an obscure label which medieval judges formulated without accurately describing the content the boundaries, or the contours of the dogma which it covers. Still, no court has declared that in this factual situation property is in custodia legis, or, to recall another alluring metaphor, "in gremio legis". Not even the text writers whom the majority calls to its assistance completely sustain its view. Take 7 C. J. S., Attachment, § 88, as an instance. That section vindicates my view as well as that of the majority. A portion of it is quoted: (Italics supplied.) 4 Am. Jur., Attachments and Garnishment, § 387, does indeed stand for the proposition which the Court has adopted, but a few pages farther on (§ 395) I read: "Property is attachable or garnishable in the possession of a sheriff or other officer after it has been discharged from a previous attachment, garnishment, or execution." (Italics supplied.)
Property in the possession of a Pennsylvania sheriff is not sacrosanct in all circumstances. Were it so, there would be no place in our law for the rules of successive levies which are treated in 10 Standard Pa. Practice, Attachment, § 57, the section immediately following that cited by the majority. See also 7 Standard Pa. Practice, Enforcement, §§ 95 160. If there are distinctions between writs of execution and writs of foreign attachment, so that under one you can touch and hold and even sell property in the custody of the sheriff and under the other you cannot as much as touch it, the differences are too shadowy and subtle for me to perceive them. Nor has any case come to my notice which has demonstrated logical reasons for the...
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