Millison v. Fisk

Mr. Chief Justice Walkeb delivered the opinion of the Court:

This record presents the question whether money due a school teacher can be garnisheed in the hands of the district treasurer. The eighteenth section of the attachment act declares, that, when a garnishee shall be served and interrogatories filed, as provided by the act, he shall exhibit and file, under oath, an answer to such interrogatories. This section authorizes the plaintiff to interrogate him touching the lands, tenements, goods, chattels, moneys, credits and effects of the defendant, and the value thereof, in his possession, custody or charge, or from him or her due and owing to the defendant. The answer in this case states that the district owed Millison for teaching school, on two schedules, $131.25; and to pay the amount there was in his hands as treasurer $104, at the service of the writ.

As a general rule, money in the custody of the law, or in the hands of an officer of the law, is not liable to be reached by garnishee process. This court has held that money collected on execution by a sheriff is in the custody of the law, and is not liable to be garnisheed for a debt owing by plaintiff in execution. Reddick v. Smith, 3 Scam. 457 ; Pierce v. Carleton, 12 Ill. 364 . It was again held, in the case of Lightner v. Steinagel, 33 Ill. 510 , that money paid to the sheriff, and still in his hands, on the redemption of lands from a sale on execution, was not subject to the process of the garnishee act.

In the case of Ross v. Allen, 10 N. H. 96, it was held that the selectmen of a school-district cannot be held as garnishees for money due a school teacher. In the case of Wendall v. Pierce, 13 N. H. 502, it was held that money in the hands of a 'public officer, held in his official capacity to be paid to individuals, cannot be reached by garnishee process. In the case of Deane v. McGavock, 7 Humph. 132 , the court held that money in the hands of the clerk of a court, held in his official capacity, was not subject to attachment or garnishee process. It was held in the case of Curling v. Hyde, 10 Miss. 374 , that an administrator, having money in his hands as such, is not liable to be garnisheed. In other States, under express statutes however, such money may be reached in this mode. It was held in South Carolina, 1 Strobh. 239, that money in the hands of a Hnited States marshal is not liable to attachment. It was held in the case of Bulkley v. Eckert, 3 Penn. St. 368, that money in the hands of a treasurer of a board of school directors, to be applied towards the payment of teachers under the requirements of the law, is not a debt due from the treasurer to the teacher. From these cases, and other authorities which might be cited, we may deduce the rule, that a person deriving his authority from the law to receive and hold money or property cannot be garnisheed for the same when held by him under such authority.

The reason is that the money or property is in the custody of the law. And while it so remains it is not the property of the debtor, to satisfy whose debt the process is instituted. ETor is such officer his debtor. And while the money is in the hands of the officer the law may control it, and prevent its ever reaching the hands of the person whose debt is thus sought to be satisfied.

In this case the money was in the hands of the township treasurer, when the garnishee process was served, and no portion of it had been distributed to the districts. It was still a common fund, and, until subsequently apportioned to the districts, the treasurer had no authority to pay a dollar of it on these schedules. ETor had it been specifically appropriated to pay Millison, and until the trustees directed, by their order as such, that a portion of the fund should be paid on these schedules, the money was not in the hands of the treasurer for their payment. Up to the time the apportionment was made, the money was liable to be appropriated to other purposes. The treasurer could not pay money to any one, except upon the order of the trustees. Until he had the control of the funds, he was not liable to be garnisheed, if even then. He cannot be said to have owed, or have funds of Millison in his hands, when he, or any one else, could not know whether a dollar of the money he then held would be appropriated for the payment of these schedules; and it is clear, that he could not be garnisheed before the money was appropriated to be paid to Millison, whatever might be afterward held, if garnisheed, nor did the subsequent order of the trustees change his liability. The money was not in the hands or under the control of the directors, and hence there can be no pretense, that they were liable to be garnisheed.

The judgment of the court below is affirmed.

Judgment affirmed.