First National Bank v. Hanchett

Mr. Chief Justice Sheldon delivered the opinion of the Court: Two questions are made upon the record in- this case: First, whether the sheriff could lawfully levy upon chattels held by the Garden City Warehouse Company as bailee, for the purpose of attaching the lien or interest which the company had in the chattels for storage charges; second, although such levy could not lawfully be made, yet as the sheriff did make the levy and did collect the storage charges on the property, whether the money so collected was not thereby attached, or was not then subject to attachment as the property of the Garden City Warehouse Company. We shall pass by the first question without consideration, for conceding that the goods stored in the warehouse were not subject to attachment for the debts of the warehouse company, we are of opinion that there was a dereliction of official duty on the part of the sheriff with respect to the money for storage charges which came into his hands. The statute directs that the officer shall execute the writ of attachment upon the lands, tenements, goods, chattels, rights, credits, moneys and effects of the debtor. These storage charges were credits of the attachment debtor, and the money received by the sheriff came of such credits. The owners of the goods which the sheriff had in his possession were owing the attachment debtor these sums of money for storage of the goods, on which goods the attachment debtor had a lien for the payment of the money. The owners pay these charges they are thus owing, to the sheriff, and he delivers up to them their goods. This money thus paid into the sheriff’s hands was not his money, but the money of the attachment debtor. It was paid to the sheriff on account of the attachment debtor, and was received by the sheriff on account of the attachment debtor. The officer was commanded by the statute to attach the moneys of the attachment debtor, and this money of the attachment debtor we think he should have attached, or have held the same as attached. This court decided in Reddick v. Smith, 3 Scam. 451, that money in the hands of a sheriff, collected on execution, can not be attached as the property of the plaintiff in the execution. But in Pierce v. Carleton, 12 Ill. 358, it was held that surplus money made on execution, in the hands of an officer, over and above what 'was necessary to satisfy the execution, belonging to the defendant, might be the subject of attachment,—that is, might he garnished in the hands of the officer. And although money in the hands of an officer, collected on execution, of an amount no more than sufficient to satisfy the execution, may not he levied on to satisfy another execution in the officer’s hands, that object may be accomplished by returning the money into court with the writ, when the court ■ may direct the money to be paid in satisfaction of the second execution, as in Armistead v. Philpot, Doug. 219. And see Williams v. Rogers, 5 Johns. 163, and Turner v. Fendall, 1 Cranch, 41. So here, if this money in the sheriff’s_ hands was not strictly property of the warehouse company which could be seized in attachment, it might have been held and brought into court by the sheriff, to answer to the judgment in attachment, as the court might direct. But this money was not collected on any execution. It was money owing to the warehouse company, voluntarily paid into the sheriff’s hands by the company’s debtors, and money may be seized on execution,—and this, too, even though the money be not found in the execution debtor’s own hands. Wheeler v. Smith, 11 Barb. 345; Spencer v. Blaisdell, 4 N. H. 198. Why, then, should not the sheriff have held this money, and returned it into court to answer upon the attachment ? This certainly would have been in the spirit of the Attachment act, with reference to the appropriation of credits on attachment, which directs that credits shall be attached,—and this court has said the Attachment act should receive a liberal construction. Hannibal and St. Joseph Railroad Co. v. Crane, 102 Ill. 249. It is said that it was not in accordance with plaintiff’s instructions to the sheriff, for him to levy on this money,—that the instruction was, that the storage money received should be held by the sheriff in the place and stead of the property released. Had the sheriff held the money as instructed, all would have been well. But he did not hold it. He parted with the money, and paid it away on the order of the warehouse company, without the knowledge of the plaintiff. This was in disobedience of the plaintiff’s instruction, and when the sheriff undertook to depart therefrom, his official duty should have guided his conduct. It is said the attachment of the goods in the warehouse was a trespass, that the warehouse company had its remedy in trespass against the officer for making such attachment,' and that in reparation for the wrong the sheriff might very properly pay the money to the warehouse company. This would appear to assume that any damages in trespass would be assessed to the amount of "these moneys. But it may be supposed any damages which would be assessed for such a trespass would be small, where the officer had appropriated the moneys thus obtained to the satisfaction of a just demand against the company. However, the sufficient answer in this regard would seem to be, that the warehouse company’s order for the payment of the money by the sheriff was a ratification of the sheriff’s agency in receiving the money,—an acknowledgment that the money" in the officer’s hands was the money of the company, and would be a waiver of the supposed trespass. Furthermore, this order was a distinct admission by the warehouse company that the money in the sheriff’s hands was their money, and upon this, if nothing else, the sheriff should have attached, or have held the money in his hands, as the money of the warehouse company, and have brought the same into court, to abide its disposition of the money. The return day of the writ of attachment was May 5, 1884, and on May 1, 1884, the money was paid by the sheriff upon the order of the warehouse company, so that the order was given before the return day of the writ, and at a time when the sheriff might have levied it upon the money. The judgment of the Appellate Court will be reversed, and that of the Superior Court will be affirmed. Judgment reversed. Mr. Justice Shops, dissenting.