Richardson v. Gurney

Martin, J., delivered the opinion of the court. This case comes before us on a rule requiring the sheriff to pay over to the plaintiff certain moneys, by him collected on an execution, in favor of the plaintiff, against the defendant. The case was before this court last >year, when the judgment of the District Court, quashing the execution under which the money was collected, was reversed and set aside. Vide 8 Louisiana Reports, 255. When the cause was sent back, the plaintiff resorted to a rule on the sheriff, requiring the money thus collected by him to be paid over to the plaintiff in the execution. The rule was discharged, and the plaintiff has appealed to this court. Money due to the plaintiff, is a proper object of attachment by any of his creditors ; even the defendant who owes it, may attach the amount of the judgment and execution, against himself, in a suit against the plaintiff, for a claim equal or greater in amount. Where money owing by the defendant in execution, is deposited in the sheriff’s hands, ^ and attached by" the latter in a new suit against the plaintiff, it will not be considered as money made on the execution, but only pledged for the sheriff’s indem-» nification. The evidence of the case shows, that shortly after the execution issued, the defendant put into the sheriff’s hands an* attachment against the plaintiff’s property, and requested that officer to levy it particularly on the judgment of the plaintiff against him, on which execution issued. The sheriff being in doubt as to the course which it became him to pursue, the defendant deposited in bis hands the full amount of the judgment and execution, and directed it to be held subject to his attachment. . The sheriff consented to retain the deposit until the validity of the attachment and its effect could be tried and decided on by the court. We are of opinion, the district court did not err in discharging the rule. The money due by the defendant, to the plaintiff was a proper object of attachment at the suit of any of his creditors; and although the neglect of the defendant to oppose the claim he now seeks to enforce, by pleading it in compensation and reconvention, in the suit in which judgment was obtained by the plaintiff, might be an objection to relief sought by an injunction, yet nothing prevents a new suit being instituted, in which this' money is liable to attachment. The money in the sheriff’s hands was not by him made on the execution, which he was prevented from proceeding on by the attachment.. It is still the money of the defendant, pledged to the sheriff for his indemnification. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, discharging the rule, be affirmed, with costs.