Curtis v. Ford

1. Garnishment, form of Writ.—The failure in a writ of garnishment to set put the amount of the debt claimed by the plaintiff of the defendant does not invalidate the writ by reason of such omission. 2. Garnishment will not Reach Funds in Custody of the Law.—Funds in custody of the law, that is to say in the hands of an officer entrusted with their keeping, are not subject to garnishment. 3. Same—Money Deposited with District Clerk.—A district clerk with whom money made by the sale of sequestered prop'erty is deposited holds the money in his official capacity only, and the fund can not be reached by garnishment. 4. Same—Fund Owned by Nonresident.—Nor would the fact that the money deposited with the district clerk by the sheriff upon sale of sequestered property was owned by a nonresident subject the fund to the writ of garnishment against the said officer in a suit against such nonresident. 5. Attorney Fees to Garnishee.—An attorney fee of $250 for answering allowed the garnishee approved. 6. Fundamental Error.—For want of jurisdiction over the fund in hands of the district clerk as such officer the judgment below in favor of intervener claiming by assignment from the apparent owner of the fund is fundamental error and cause for reversal.

Appeal from Clay. Tried below before Hon. P. M. Stine. The statement is adopted from brief of appellant. W. R. Curtis, appellant herein, on the 15th day of July, 1885, instituted suit in the District Court of Clay County against one R. P. Wells, a resident of Missouri, to recover the sum of §3135, which appellant claimed was due him by said Wells on a certain note for §13,326, which appellant and said Wells had signed together as sureties for one B. Z, Bowers. Appellant in his petition against said Wells alleged that he had been compelled to pay on said note to the legal holder thereof the sum of §6270, which amount the said Bowers had failed to pay; that said note had been assigned to appellant, and he-brought said suit thereon against said Wells to recover one-half of the amount so paid by appellant on said note. While this suit was pending and undetermined appellant filed therein on the 26th day of May, 1887, his application and bond for writs of garnishment against G. W. Ford and the Henrietta National Bank, and on the same day he caused a writ of garnishment to be issued and served on the garnishee G. W. Ford, and this proceeding was styled and docketed separately from the main cause. On the 16th day of March, 1888, appellant amended his petition in the main cause, and alleged in addition to the facts set up in the original petition that in paying off the note sued ou to the legal holders thereof he had paid thereon the sum of §10,379.24, and by said amendment he sought to recover of said Wells one-half of this amount, or §5189.62, instead of the amount first sued for. On this amended petition judgment was rendered on the 12th day of April, 1888, in favor of appellant and against R P. Wells for §4028. This judgment was final, and was never appealed from or in any way satisfied. In the meantime the garnishee G. W. Ford had on the 4th day of October, 1887, answered the writ of garnishment served on him, and had denied all indebtedness to B. P. Wells, and denied ever having had any effects belonging to said Wells in his possession. After making this denial he answered specially, and set out that about the 4th day of August, 1884, the sheriff of Clay County placed in his (G. W. Ford’s) hands as clerk of the District Court of Clay County the sum of §6750, which amount was the proceeds of the sale of certain property sold by said sheriff under an order of the District Court of said county made in the case of B. P. Wells v. E. Dawson et al., then pending in said District Court; that Ford was then and is yet the clerk of said court, and that he received such fund in his capacity as such clerk, to be held by him to await the further order and judgment of the court in said cause; that about the 24th day of August, 1884, he deposited said fund in the Henrietta National Bank for safe keeping, etc.; that about the 13th of November, 1884, said fund was drawn out of said bank and placed in the hands of W. B. Worsham, who returned it to the bank about January, 1886, where it yet remains, etc.; that said cause of Wells v. Dawson et al. was removed to the United States Court and there tried on May 27, 1887, after service of the writ of garnishment in this case, which was on May 26, and resulted in a judgment for Wells, who was adjudged to be entitled to recover the property of which said fund was the proceeds; that said fund was in the custody of the law and was not subject to garnishment, etc. This answer was duly controverted by appellant, who, on the 13th day of April, 1888, filed his amended affidavit controverting said answer, wherein he alleged, among other things, that the fund in appellee’s possession was not in the custody of the law, but that the same had been removed from such custody, and was on the 26th day of May, 1887, and had been ever since held by G-. W. Ford in his individual capacity for said "Wells, and that the said fund was subject to plaintiff’s garnishment. Appellant by his said plea also set up the rendition of the judgment in his favor against said Wells, the latter’s insolvency, and his nonresidence in the State, and sought to reach said fund through an appeal to the equity powers of the court in case it should be decided that the same was in the custody of the law and not subject to garnishment. This controverting affidavit was very full in its allegations. On the 13th day of April, 1888, appellee Worsham was permitted to intervene in the case, and on the 2d day of April, 1889, he filed his amended plea of intervention, wherein he claimed the fund in controversy as his property. This claim wras based upon two grounds; first, that the fund had never been the property of Wells, but that the said Wells was only a trustee thereof for said intervenor; second, that said Wells had on the 30th day of May, 1887, assigned said fund to intervenor for a valuable consideration, and that said G-. W. Ford was notified of and accepted said assignment on the 4th day of June, 1887. Intervenor also urged that the fund was in the custody of the law and that the writ was fatally defective, etc. To this plea appellant answered (1) by general denial; (2) that the assignment of said fund to intervenor by Wells was fraudulent and without consideration; (3) that all indebtedness existing between Wells and Worsham had been paid by the former long before said assignment of said fund, and that at that time Wells owed AVorsham nothing, and that said intervenor acquired no rights to said fund as against this appellant. A jury was demanded and the case was tried on the 2nd day of April, 1889. Ho motion was made to quash or set aside the writ of garnishment, but when appellant offered the same in evidence on the trial the appellees objected to its introduction because it failed to recite the amount of the indebtedness claimed by appellant of the said E. P. Wells. This objection was sustained and the evidence was excluded. Appellant then introduced his other evidence, and before closing again offered in evidence said writ, with the endorsements thereon, together with the affidavit and bond given therefor. This testimony was again objected to for the same reasons as before, whereupon appellant asked leave to amend said writ by inserting therein the amount of the indebtedness claimed by him of said Wells as set out in the affidavit for said writ. This was refused by the court and the evidence was again excluded, and appellant duly excepted. After the evidence was closed the court instructed the jury as follows, viz.: “ You are instructed that as between plaintifi W. R. Curtis and G. W. Ford, garnishee, you will find for the garnishee, and as between interven or and the garnishee you will find for the inter venor.” The verdict and judgment were in accordance with this instruction. By this judgment the garnishee was allowed $250 for answering the writ of garnishment herein, which item was taxed against appellant as a part of the costs. Appellant within two days filed his motion for a new trial. He also filed a motion to retax the costs in the case.. Both these motions were overruled by the court, and appellant gave notice of appeal. The regular clerk being disqualified, G. T. Dulaney was appointed as special clerk in this case and duly qualified as such.