Connolly v. Thurber Whyland Co.

Lumpkin, Justice. 1. It can scarcely be doubted that where one charged with drunkenness and disorderly conduct is arrested by a policeman in a city, it is the duty of the officer, if the prisoner is so intoxicated as to be incapable of properly caring for money or other valuables on his person, to take possession of the same for safe-keeping and for the purpose of restoring them to the owner upon, or before, his discharge from custody. This duty might also devolve upon the arresting officer in some cases when the prisoner was not intoxicated; as, for. instance, when he was about to be confined among other prisoners who might steal from him the articles in question. In the view we take of the law applicable to the case before us, however, it is entirely immaterial whether Cooper was or was not intoxicated, or whether he was deprived of his money and other valuables lawfully or unlawfully. In neither event was the officer who first took possession of the property, or his superior officer to whom it was afterwards delivered, liable to the process of garnishment at the instance of Cooper’s creditors. In a case of this kind, the property is in custodia legis, and it is contrary to public policy that an officer of a court, or of a municipal corporation, be subjected to the process of garnishment under such circumstances. See Kneeland on Attachment, §410; Mechem on Pub. Off & Off’rs, §§875, 876; Brake on Attachment (7th ed.), §509b. The doctrine laid down by these text-writers is supported by Morris v. Penniman, 14 Gray, 220; s. c. 74 Am. Dec. 675; Commercial Exchange Bank v. McLeod, 65 Iowa, 665; Robinson v. Howard, [655] 7 Cush. 257. And the same conclusion is announced in 8 Am. & Eng. Enc. of Law, 1132-1135, under the title “ Garnishment.” The reason for the rule is, that public corporations are created for the public benefit, and public policy demands that such bodies and their officers should not be subjected to such inconvenience and delay as would prevent that prompt and efficient discharge of official duties so necessary to the public welfare. In this connection, attention is called to the apt and appropriate language of Chief Justice Bleckley in Born et al. v. Williams & Bro., 81 Ga. 798. A very strong case in point is that of Davies v. Gallagher, defendant, and Cassidy, garnishee, reported in 17 Phila. Rep. 229. We have not quoted from any of the authorities above cited; but any one who will take the pains to examine them cannot fail to be convinced that our judgment in the case at bar is correct. Besides the authorities above mentioned, many others to the same effect could doubtless be found. Exemption from the process of garnishment is not for the benefit of the officer, but for the benefit and protection of the public, whose interest it is that he shall not be subjected to the necessity of leaving his post of duty to answer in a proceeding in which he has no official concern. The present case affords a striking illustration of the necessity of a rule of this kind. It is obvious, without elaboration, that to attend to the numerous lawsuits (mentioned in the reporter’s statement) now pending against Connolly, the chief of police, must necessarily require a very large portion of his time and attention which should be devoted to the public service; and if he were liable to garnishment in every case of this kind which might arise, it is easy to perceive that he would be subjected to constant danger of heavy personal loss, or else be forced to seriously neglect his official duties. The former would be a great hardship upon [656] him, and the latter a serious and entirely unwarranted hardship upon the public. The policy of the law forbids that either of these things should occur. It will be observed we have not touched upon the question as to whether or not a policeman would be liable to the process of garnishment in a case where a prisoner voluntarily deposited with him money, or other valuables, for safe-keeping. Nor is it necessary, in the present case, to decide this question. It distinctly appears that Cooper’s property was taken from his possession without his consent, and that the taking of the same by the officer was under color of his official authority. 2: It follows conclusively from what has been said, that Cooper had a plain and undoubted right to maintain the action of trover brought by him for the recovery of his property; and it has also been made apparent that Connolly, by an answer in each case simply setting forth the facts under which he came into possession thereof, had a complete and perfect defence to the several garnishment suits brought against him. Consequently, there was no good reason to enjoin the action brought by Cooper, or to require the several plaintiffs m the garnishment suits to interplead with each other, and the court was therefore right in denying the prayers in Connolly’s petition for injunction and interpleader. Judgment affirmed.