Marine National Bank of Duluth v. Whiteman Paper Mills

Dickinson, J. This is an appeal by the plaintiff from an order discharging the garnishee, Sinclair. The facts upon which rests the liability of the garnishee as such may be briefly stated as follows: During the trial of an action in the district court, in which this defendant (and respondent) Whiteman was a defendant, he produced in court the sum of $4,800, and tendered it to the plaintiff in that action. The plaintiff refused to accept the money, and it was then and in open court delivered to the clerk of the court, (or his deputy,) to be paid to the plaintiff in that action if he would accept it. No order was made by the court concerning this matter. Tha clerk, who is the garnishee, having received the money, gave his receipt therefor, officially signed, and acknowledging the receipt of the money “as deposited in court.” Afterwards, upon the application of the defendant, the court made an order that the clerk redeliver the money to him; but this order was not filed with the clerk, nor, as it would seem, was it presented to him until after the service of the garnishee summons, although he was previously “informed that an order had been granted.” While the clerk,’acting upon this information, was about to pay over the money, the garnishee summons in this action was served upon him. Upon these facts appearing to the court, the order discharging the garnishee was made, from which this appeal was taken. If the act of the clerk in receiving and holding the money was not official in its nature, or, in other words, if the money was not in legal effect paid to and placed in the custody of the court, then it was subject to garnishment, notwithstanding the fact that the person who [139] received and held it was a public officer. Such officers are not exempt from liability to such process, as respects acts which in legal contemplation are only of a personal, and not official, character. We regard the transaction in question as having been in legal effect merely personal, and not official; and, whatever the understanding of the parties may have been, the official character of Sinclair imparted no legal effect to it. He was not the court, but only a ministerial officer of the court, with only such official authority as had been expressly or by plain implication conferred upon him. To determine whether his act was of an official character we must consider whether it was within the scope of his- official duty. He could not, by his own act or'acknowledgment, give an official character to conduct which was not embraced within the authority conferred upon him. We are cited to no statute, and we know of none, which requires or authorizes a clerk of court to receive and hold money which may be offered to him for the purpose of keeping good a tender made in court; and, in the absence of a statute and of any order or direction on the part of the court, —and there was no such order in this case, — the clerk was under no legal obligation to receive the money. He might receive it, just as the sheriff, or a bailiff, or any bystander might have done, but bis act in doing so was no more official than theirs would have been. He had no power to give an official character to the transaction, which the law did not recognize as such. It was no part of his. general duty, as the clerk of the court, to receive and hold all moneys that might be delivered to him. If he'received it without authority, he held it just as any private person would do.- It was not thereby brought into the custody of the court, nor.withdrawn from the reach of ordinary legal process, either upon the ground of its being in cus-todia legis or upon the ground that, as an officer of the court, he was exempt from liability to respond to such process. The written order of the court directing the payment of the money to the defendant did not become effectual to authorize the holding or disposition of the money by the clerk in his official capacity. It was not filed nor presented to the clerk until after the service upon [140] him of the garnishee summons by which the money in his hands was attached. While it remained in the possession and subject to the control of the defendant without being formally communicated to the clerk, it did not convert the unofficial conduct of the clerk, in holding the money, into an official duty. The order was made for the benefit of the defendant, and he was at liberty to make it available by communicating the order to the clerk, or to forbear from doing so. The mere statement to the clerk that such an order had been signed was not a communication of the order to him. That did not constitute an order from the court to the clerk. (Opinion published 51 N. W. Rep. 665.) Order reversed.