White v. Culter

Pillsburt, P. J. The only question raised by this record is whether the levy of the attachment writ in favor of the appellant was sufficient to create a lien npon the goods then in the hands of the sheriff by virtue of the execution in favor of Culter & Co. While counsel for appellant concede that an attachment lien can only arise from a valid levy and that the general rule is, that in order to make such levy against subsequent lien creditors or purchasers upon personal property, the officer should obtain actual control of it. They contend that Sec. 51, Ch. 77, R. S. 1874, modifies the rule between attachment and execution creditors as to their priority of lien either to the goods or funds derived from sale under a prior execution. That section provides, “ If the goods or chattels sold on execution have been attached by another creditor, or seized on another execution, either by the same or any other officer, or if before the payment of the residue, after the satisfaction of such execution to the debtor, another writ of attachment or execution against him is delivered to the officer who made the sale, the proceeds of the sale shall be applied to the discharge of the several judgments in the order in which the respective writs of attachment or execution become a lien or are entitled by law to share, and the residue, if any, shall be returned to the debtor or his assigns.” We agree with counsel as to the effect of this statute. It was evidently the design of the Legislature to subject the property of the debtor in the custody of the law under prior writs, to levy under subsequent writs of attachment or execution, whether the same were or could be placed in the hands of the same officer or not, thus giving creditors priority according to their diligence, in any interest the creditor may have in the goods after the prior execution has heen satisfied. The statute we think expressly recognizing the right of any other officer, than the one having custody of the goods, to levy thereon, and as the law will not permit him to take the goods into his own control to the exclusion of the officer in whose possession they are, the inevitable conclusion is, that the best levy admissible under the circumstances must be held to satisfy the law. A notification to the officer holding the goods, of the writ of attachment and the indorsement of the levy is all that can be done by the officer holding junior writs, and thereafter the officer holding the prior writ must be treated in the law as the custodian of the officer making a second or any snbsequen c levy, as to any surplus that may arise from the sale of the property, or as to the residue of the goods in his hands after selling sufficient to satisfy his prior lien. In this case the constable indorsed a levy upon his writ, notified the sheriff’s custodian and appointed him also as his custodian.- This must be held, we think, a sufficient levy under the statute to give White a lien upon the goods from the date of such levy and consequently entitles him to be first paid out of the surplus funds derived from the sale and placed in the hands of the appellee by agreement. The judgment of the county court should have been for the appellant. The judgment will be reversed and cause remanded. Judgment reversed.