Pinckard v. Davis

JUDGE -HAZELRIGG delivered the opinion of the court. [270] In an action in the circuit court an order of attachment was issued toy the clerk and directed to the marshal of the town of Augusta — a town of the fifth class. The process was duly served on the garnishee, but in a contest between the attaching creditor and a subsequent claimant of the fund sought to be attached, the trial court held the service ineffectual to create a lien, and adjudged the fund to the junior claimant. On appeal it is contended that while the provisions of the Code (subsection 2, section 667) do not designate such an officer as one to whom such process may be directed, yet power to execute it is conferred on him by section 3629 of the Kentucky Statutes (charter of town of the fifth class), provided the process be directed to him. That section provides that the department of the police of said city shall be under the direction and control of the city marshal, and for the suppression of any riot, public tumult, etc., he shall have the powers that are conferred upon sheriffs by the laws of the State, and shall in all respects be entitled to tbe same protection, and then follows this language, which is that relied on by appellant: “He shall and is hereby authorized to execute and return all process issued and directed to him by any legal authority.” Then follows further regulations with respect to the duties of the marshal in the police count and in the city. It seems to us that the power to execute process conferred by the language quoted .must be restricted to process issued and directed by municipal authority. The marshal is an officer of the city government, an appointee of the council, and sustains somewhat the same relation to the city and its governmental affairs as the sheriff does to the county. We can not believe this statute intended to add his name [271] to tbe iist of officers authorized by the Code to execute process and orders of attachment in the circuit court. As there was no authority on the part of tbe marshal to execute tbe process, there was none on tbe part of tbe clerk to issue and direct it to him, and its service created no-lien. Judgment affirmed.