State v. Blum

ChRistiaNSON, J. This is a sequel to State v. Blum, 57 N. D. 619, 223 N. W. 697. That was an action brought by the state against the defendant Dave Blum as principal and the defendants Lyman Brokaw and Lorenz Sowitch, as sureties on a bail bond. This is a garnishment action instituted ancillary to the other action and grew out of the following facts: the defendant Lyman Brokaw was charged with violation of the prohibition law, and was arrested upon a warrant of arrest issued by one A. L. Butler, a justice of the peace in and for Williams County. After hearing had before the justice of the peace said Brokaw was held to answer the criminal charge against him and was admitted to bail in the sum of $500. He furnished bail by depositing $500 in cash. The moneys were transmitted by the justice of the peace to the clerk of the district court. On being arraigned in the district court the defendant entered a plea of guilty and was sentenced to imprisonment in the county jail of Williams County. lie served his sentence- and was discharged from custody on February 25, 1927. He did not call upon the clerk of the district court for a return of the money which he had deposited for bail. On April 15th, 1927, the state instituted the present garnishment action against the clerk of the district court as such officer, and as an individual, as garnishee. The garnishee interposed an affidavit admitting liability. In such affidavit he stated that he had in his possession and under his control $500 in cash belonging to the defendant Brokaw and that he claimed no set-off or defense to such liability. The defendants Brokaw and Sowitch interposed an answer wherein they stated that the garnishee did not have in his possession or under his control any property real or personal belonging to the defendants except $500 in cash which had been deposited as a bail bond for the defendant Lyman Brokaw; “that the said Lyman Brokaw did appear and surrender himself to the said Court and that the said Court did *551 pass judgment upon tbe said defendant, Lyman Brokaw, and tbat be did serve tbe judgment and sentence of tbe said court and tbat, by virtue thereof, tbe said bail bond in tbe sum of five hundred dollars ($500) was exonerated and tbat tbe said bail bond is in tbe custody of an officer of this court and is, by law, not subject to seizure under execution, garnishment or attachment.” Tbe trial court overruled tbe contention advanced by tbe defendants and rendered judgment in favor of tbe plaintiffs. The defendants Brokaw and Sowitcb have appealed from tbe judgment. Tbe sole question presented for determination is whether tbe moneys in question were subject to garnishment. Ordinarily uncertain or contingent interests, — tbat is, interests in property to tbe possession and enjoyment of which tbe defendant may never succeed (12 K. O. L. pp. 794, et seq.), and moneys or property in custody of law such as moneys or property received or collected by a sheriff or other officer by force of an execution or other legal process in favor of tbe defendant or for which be is accountable to tbe defendant merely as such officer (12 It. C. L. pp. 807, et seq.), are not subject to garnishment. These rules are of general prevalence and have been recognized and adopted by statute in this state. See § 7584, Comp. Laws 1918. Tbe reasons for the rule exempting persons bolding property as agents of tbe law from garnishee process are obvious. It would of necessity impose upon such officers burdens which ought not to be imposed upon them. 1 Shinn, Attacbm. & Garnishment, § 46; 28 C. J. pp. 65, 66. To require such officers to respond in garnishment would tend to interrupt tbe orderly progress of judicial proceedings, engender conflict of authority, and might, in some cases, defeat tbe very purpose for which the property was placed in custody of law. 28 C. J. p. 66; 1 Shinn, Attacbm. & Garnishment, § 46. Furthermore, it is often true that while such property is in custody of law, the defendant has no fixed title thereto, but his interest is merely contingent. Take, for instance, the case at bar; as long as the deposit was held as a bail bond the defendant Brokaw had merely a contingent interest. If the conditions of the bail bond were fulfilled the property became his. If, • on the other hand, the conditions were violated he would lose all interest therein. A mere statement of the rule that property in custody of law *552 is exempt from garnishee process indicates the limitations of the rule of exemption. It is property that is in custody of, and that has been dedicated by, the law to a particular purpose which is'exempt. The exemption applies to the property as long as the purpose for which the money or property has been so placed in custody of law remains unfulfilled; but when the prescribed purpose has been fulfilled so that the money or property is no longer subject to any control by the officer or tribunal .under whose custody and control it was placed and the custodian is holding the same merely for the defendant and the latter is entitled to receive the same as a matter of right, without condition or order, the property can no longer be said to be in custody of the law.. •‘The exemption continues as long as the person holding the property is primarily accountable to the court for it; it ceases when he is no longer accountable for it. Accordingly it is generally held that he may be held as a garnishee after the purpose of the law’s custody has. been accomplished subject, of course, to the condition that the funds or property belongs to the defendant.” 28 C. J. pp. 66, 67. See also 28 C. J. p. 76; 42 Harvard L. Eev. 1080, 1081. When the purpose for which the property was placed in custody of the law has been fulfilled and the custodian is holding the same merely for the defendant who is entitled to the same as a matter of right upon demand, the reason for the rule exempting moneys or property from garnishment or other legal process has ceased and, hence, the rule is no longer applicable (28 C. J. pp. 66, 67, 76) ; for it is a maxim of our jurisprudence that when the reason for a rule ceases so should the rule itself. See § 7244, Comp. Laws 1913. In this case the defendant Brokaw was entitled to the money at any time after February 25, 1927, — and could have had it by merely asking for it. There is no claim on the part of the garnishee that he is holding the money in custody of law; nor does the defendant claim that the purpose for which the money was deposited has not been fully accomplished. On the contrary it is conceded that the defendant Brokaw is the owner of the money and that from and after February 25, 1927 up to the time of service of garnishee process on April 15, 1927, the garnishee was not holding the money for any purpose which would have justified him in withholding the same from the defendant. In short, on and after February 25, 1927 up to the service of garnishee *553 process (April 15, 1927) tbe defendant Brokaw was entitled to tbe money and could bave bad it by merely asking for it. If tbe garnishee bad refused to pay it over, Brokaw could bave maintained an action* against bim for it. 28 O. J. pp. 44, 93. His deposit in lieu of tbe bail bond became fundus officio on and after February 25, 1927. His bail was fully exonerated and tbe money was bis. The garnishee no longer held it in custody of law. The purpose for which it bad been dedicated at tbe time of the deposit bad been fully performed more than six weeks before tbe commencement of the garnishment action. Tbe court bad no right to make any further orders in respect to it and tbe garnishee bad no right to withhold it from Brokaw, tbe owner. The garnishee was holding it for Brokaw, and not for any other person. In these circumstances it cannot be said that the money is in custody of the law or held by tbe garnishee as a public officer. He is bolding it for tbe defendant. In a word, tbe conditions under which tbe law says that money shall not be subject to garnishment had ceased to exist and the money was and is subject to garnishment as tbe property of tbe defendant. Dunlop v. Patterson F. Ins. Co. 74 N. Y. 148, 30 Am. Rep. 283; Dunsmoor v. Furstenfeldt, 12 L.R.A. 508, and note (88 Cal. 522, 22 Am. St. Rep. 331, 26 Pac. 518); Boylan v. Hines, 62 W. Va. 486, 13 L.R.A.(N.S.) 757, 125 Am. St. Rep. 983, 59 S. E. 503; LeRoy v. Jacobosky, 136 N. C. 443, 67 L.R.A. 977, 48 S. E. 796; Robertson v. Detroit Pattern Works, 152 Mich. 612, 116 N. W. 196, 15 Ann. Cas. 131. The judgment appealed from is right and should be affirmed. It is so ordered. Bueke, ' Ch. J., and Biedzell, Buee, and Nuessle, JJ., concur.