Caldwell v. Sibley

By the Oov/rt — Atwater, J. On the 30th day of September, 1859, the Plaintiff in Error, then being Sheriff of Ramsey County, and as such Sheriff, served a warrant of attachment on the Defendant in Error, issued in an action in which McDonald, Graham & Co. were Plaintiffs, and the Minneapolis & Cedar Yalley Railroad Company were Defendants. The property sought to be attached was fifty-three Minnesota State [410] Railroad Bonds, then being in the hands and possession of Henry H. Sibley, Defendant in Error. The manner in which said Bonds were attached by the Sheriff is stated in the complaint, viz: “that he attached the same by serving upon and delivering to said Sibley a true cojsy of said warrant of attachment, together with a written notice thereon to the Defendant that by virtue of said warrant of attachment he thereby attached said Bonds so in the Defendant’s hands, as aforesaid.” Judgment was rendered in favor of the Plaintiffs, McDonald, Graham & Co., against the Railroad Company, and the Sheriff brought this action in the Court below against Sibley, to obtain the actual possession of the Bonds, alleged to have been attached by him as aforesaid. The answer of the Defendant below denies (among other things) that the Plaintiff ever attached the Bonds, but does not deny the facts in relation to the manner in which said Bonds were attached, as stated in Plaintiff’s complaint. To this answer the Plaintiff demurred, and one of the grounds of demurrer stated is, that “the denial that the Plaintiff ‘duly attached the Bonds,’ is a denial of a legal conclusion; and the answer does not deny the acts done by the Plaintiff, as set forth in the complaint, constituting the due attachment of the Bonds.” This brings the question directly before the Court, as to whether the facts stated in the complaint constitute a good service of the warrant. Other points were raised on the argument, but in the view taken of this by the Court, it will be unnecessary to consider any other. The statute upon the subject of attachments provides (Rev. Stat., p. 551, Seo. 40, sub. 2) that “personal property capable of manual delivery to the Sheriff, must be attached by taking it into his custody.” That these Bonds are personal property will not probably be disputed; (2 Kent. Oom.,p. 400;) nor can it be claimed with show of reason that they are not “ capable” of manual delivery. They areas much capable of such delivery as specie, bank bills, a horse, or anything which can be handled by the officer, and removed by him. The statute is imperative, and declares that such property nvust be attached by taking it into the custody of the officer. The next subdi [411] vision of the same section provides how other personal property, that is, property not capable of manual delivery, must be attached. There are many species of personal property to which this provision may apply, as logs, buildings not attached to the realty, growing grain, &c. It has always been held, that the proceeding by attachment not being of a remedial nature, the statute must be strictly construed. It cannot be extended by implication, to enforce rights or claims of the creditor, beyond what the letter of the statute allows. It will. necessarily follow that cases will arise where this process cannot be made available to reach the property of the debtor. Money, or other personal property in his pocket, which he refuses to deliver into the custody of the officer, cannot be reached by the writ. No title is obtained by the Sheriff, because he has no possession. We find no authorities that hold that writs of attachment or execution can be levied on personal property, where the same is not in the view, nor can be reduced to possession by the officer, but on the contrary, the authorities uniformly hold that in such cases no valid levy can be made. (Westervelt vs. Pickering, 14 Wen, 123; Beckman vs. Lansing, 3 Ib. 450; Green vs. Burke, 23 Wen, 490; Vanwyck vs. Pine, 2 Hill, 666; Hurd vs. Fairbanks, 5 Met. 111; 6 Shep. 231; 9 Ib. 337; 12 John. 402; 16 John. 287.) In the latter case it was held that “ a proclamation of a levy of goods locked up, and not within the view of the Sheriff, is no levy.” The Counsel for the Plaintiff in Error cites, in support of this attachment, Sec. 143, Rev. Stat., p. 552, and claims that the language, “ he must also collect, and if necessary, in his name of office sue for the debts and credits attached,” &c., by implication, at least recognizes the idea that personal property may be attached where the officer cannot obtain possession of the same. We think the Counsel has mistaken the intent of this section, which only directs the Sheriff how to proceed after the attachment is duly levied, that is, after he has reduced the property to possession. Then he must collect (that is, collect the money) the debts he has attached, and if they cannot be otherwise collected, he is authorized to sue for these [412] debts and credits and realize the money on them. But be. cannot proceed to collect them until be has the debts and credits in bis possession. Subdivision 4 of Sec. 148 of same chapter is to the same effect, and also provides for the ¡oroceeding of the officer in sneing for or selling the debts, &c., that have been attached. These provisions all imply that the officer has the property in his possession by virtue of the writ of attachment, for the last clause of subdivision 4, above referred to, provides that “when the judgment and costs shall have been paid, the Sheriff, upon reasonable demand, must deliver over to the Defendant the o-esidue of the attached property, or the proceeds thereof.” Sections 149, 150, and 151 of the same chapter, still further confirm the view here taken, and the whole taken together, do not authorize the presumption that the Legislature intended to provide that personal property capable of manual delivery, may be attached, (where possession cannot be had,) by serving a notice, and a suit be afterwards brought to obtain possession of the property attempted to be attached. ¥e are not aware of any State in which such a practice prevails, and unless expressly authorized by our statute, it should not be sanctioned, as it would be overturning the well settled rules of law, and lead to much inconvenience in practice. The whole theory of the law upon attachment is based upon the idea that the officer must obtain possession of the property attached; which possession is obtained in the case of real estate, and of personal property not capable of manual delivery, by complying with the provisions of the statute in relation thereto. But there is no provision by which personal property capable of manual delivery may be attached, otherwise than for the officer to take the same into his actual possession, and have the same under his entire control. As these bonds were not so attached, the levy cannot hold, and the judgment below must be affirmed.