Scruggs v. Electric Paint & Varnish Co.

*621 Anderson, J., delivered the opinion of the court. Appellee, Electric Paint & Varnish Company, recovered a judgment against appellant, Leonard Scruggs, and sought to satisfy the judgment by the levying of an execution issued thereon upon the salary warrant of appellant Scruggs as tax assessor of Leflore county. Appellants claimed that the salary warrant was not subject to the execution. The cause originated in the court *622 of a justice of the. peace of Leflore county, where there was a trial and judgment, from which an appeal ivas taken to the circuit court of that county. In the circuit court the cause was tried on agreed facts in writing and judgment rendered in favor of appellee holding the warrant subject to the execution, from which judgment ap: pellant Scruggs and First National Bank prosecute this appeal. The agreed facts were as follows: £‘ (1) That on June 7, 1923, the said Leonard Scruggs was the duly elected, commissioned, and qualified tax assessor of said county, and that his term of office did not expire until January 1, A. D. 1924. “(2) That on June 7, 1923, being then indebted to the First National Bank of Greenwood, Miss., and on said date he assigned in writing to secure said debt his salary warrant as such assessor for the month of September, 1923, payable October 1, 1923, and June 7, 1923, he delivered a written order to A. R. Bew, clerk of the board of supervisors of said county, to deliver to said bank said salary warrant; and that on said date the said Bew accepted said assignment and notice thereof in writing, and filed a copy of said notice in his office. ££(3) That on the 23d day of August, 1923, a judgment was recovered by the Electric Paint & Varnish Company against the said Leonard Scruggs in said court of said justice for the sum of one hundred eighty-six dollars and eight cents, with costs, and that said judgment was never enrolled on the judgment roll in the clerk of the board of supervisors’ office. That on the 28th day of September, 1923, an execution was issued on said judgment, and October 3, 1923, said warrant was levied on and taken into possession by sheriff of said county by virtue of said execution, and is now in his possession. “(4) That said bank then and there propounded its claim as assignee of said salary warrant, and now propounds its claim as such assignee. *623 “(5) That said Scruggs claims that said warrant is not subject to execution; being the salary of a public officer, and is exempt, or a portion thereof, from execution, he being the head of a family. “ (6) That said bank claims said warrant as assignee for value received this 30th January, 1924. That said warrant has been allowed and issued, and was in the hands of the clerk when levied on.” Appellants contend (and appellee seems to concede the contention) that the salary of a public officer cannot, while in the hands of a disbursing agent of the government, be diverted from its legitimate object by attachment, execution, or other legal process, and be subjected thereby to the payment of the private debts of such officer. The authorities seem to be practically uniform in so holding. The exemption of the salary is not for the personal benefit of the officer, but is for the protection of the public. To permit the salary of a public officer to be taken by legal process while in the hands of a government disbursing agent would impair and endanger the public service. The state and its political subdivisions would be drawn into controversies of a character in which they have no interest. If the remuneration for their services could be intercepted in that manner, the result would be to hamper and impair the public service. The principle is based upon public policy; it is not for the personal protection of the officer whose salary is sought to be reached by legal process. Note to Dickinson v. Johnson, 96 Am. St. Rep. 443, 449, 574; note to Dickinson v. Johnson, 54 L. R. A. 568 and 574; 22 R. C. L. 547, section 247; 23 C. J. 334; 28 C. J. 179. Appellee’s position is that the salary warrant of appellant Scruggs at the time it was levied on by the execution was not in the hands of the clerk of the board of supervisors as a public disbursing officer of the county ; that the clerk, by virtue of the written assignment to appellant bank and notice thereof to him, held the warrant as the mere agent of appellant Scruggs for delivery to appellant bank, and therefore it was subject to the *624 execution; that its status was exactly what it would have been had it been in the custody of appellant Scruggs himself; and to that state of facts the above principle of law has no application. The case therefore turns on the question whether the clerk held the warrant in his official capacity or as a mere private agent of appellant Scruggs to be delivered to appellant bank. We are of opinion that at the time of the levy of the execution the warrant had not passed out of the hands of the clerk as a public official; that the mere fact of the assignment of the warrant to appellant bank and notice to the clerk by appellant Scruggs of such assignment and request by him that the clerk deliver the warrant to appellant bank was not sufficient to change the character in which the clerk held the warrant. Pie still held it in his official capacity. At the time of the levy of the execution the warrant was so held by him, and was, therefore, not subject to be taken by the execution. We do not reach the decision of the claimant’s issue as between appellant Scrug'gs and the First National Bank. In the first place, appellant Scruggs insists that the bank is entitled to. the warrant as between him and the bank as well as against appellee, and that, if he is wrong in that contention, he is entitled to the warrant as against both appellee and appellant bank. Under the chapter on “Trial of Bight of Property” (sections 4990 to 5001, inclusive, Code of 1906 [sections 3264 to 3275, inclusive, Hemingway’s Code]), where personal property is levied on by execution and claimed by a third person, the claimant’s issue is not triable, unless the plaintiff in execution succeeds in establishing that the property seized is liable to the execution. If as between the plaintiff and the defendant in execution the property taken by the execution is not subject thereto, the court is without authority to adjudicate the conflicting-claims thereto as between a third person and the deféndant in execution. Beversed, and judgment here for appellants. Reversed.