Eaton v. McElhone

Mahan, P. J. The only question involved in this case is the right of the Sheriff to appropriate money which he had collected upon exection, during the life of the execution and before its return, to the satisfaction of another writ then in his hands for execution. The money was in the custody of the law and could not be seized upon execution. The Sheriff had no specific money or other property of the plaintiff Eaton upon which he could levy. Even if such a tax warrant is within the provisions of section 486 of the Code, which is doubtful, he was not indebted to Eaton so that he might under the provisions of that section pay it out of the fund. But this he does not claim to do. Pie claimed, as shown by the record, to have levied upon the money by virtue of the tax warrant. It is contended by the defendant in error that the plaintiff in error waived his right to proceed against the Sheriff in this summary manner, by accepting the $154.42 which the Sheriff did pay into court. This claim is not tenable. Pie had a right to take from the court whatever was returned, and the Sheriff could be amerced for withholding the remainder. See §§ 472 and 474 of the Code of Civil Procedure. Section 474 reads: “When the cause of amercement is for refusing to pay over money collected as aforesaid, the said sheriff or other officer shall not be amerced in a greater sum than the amount withheld, with ten per cent, thereon.” The court erred in denying the motion for amercement. Scott et al. v. Smith, 2 Kan. 438; Turner v. Fendell, 1 Cranch, 45; Dawson v. Holcomb, 1 Ohio, 275; Clymer v. Willis, 3 Cal. 363; Freeman on Executions, §130. The case of Turner v. Fendell, supra, seems to be the first decision rendered in this country upon the [227] question. It is approved by our Supreme Court in Scott et al. v. Smith, supra. It is true that there are courts that have held to the contrary, but as a matter of public policy, if for no other reason, a sheriff or other officer collecting money on a writ issued by a court ought not to be permitted to dispose of the money except as he is directed by the writ, or by turning the money into court, so that the court itself may make such directions concerning the fund as accord with justice and the rights of the parties. Judgment is reversed, with direction to' proceed in accordance herewith. McElroy, J., concurring.