Dunn v. Newman , 8 Miss. 582 ( 1843 )

Per Curiam.

The plaintiff made his motion in the circuit court of Adams county against the defendant, as sheriff, for failing to pay over money collected under an execution, the same having been demanded by the plaintiff.

On the trial of the motion, the execution was introduced, on which the sheriff had made his return, by which it appeared that he had made a levy on a negro girl. A witness was introduced who proved that a demand was made by the plaintiff,, the administrator of the deceased partner being also present, urging the payment to the plaintiff. The defendant furnished a written statement, by which he admitted the amount collected to be six hundred and forty-six dollars and seventy-two cents. But he refused to pay it over, because he had been directed by Vannerson & Baker, the attorneys in the case, not to do so; and this was his only ground of refusal, in which he persisted, although informed that the attorneys’ fees had been paid. On this state of facts, the plaintiff prayed the court for a judgment, but the motion was resisted, as appears by the bill of exceptions, because the motion was not made against the sheriff and his sureties, and because the plaintiff did not claim damages; and the motion was overruled.

The statute gives the plaintiff a remedy against the sheriff and his sureties, but, as it is only for his security or indemnity, he may proceed against the sheriff alone if he chooses, and so may he claim damages or not, at his election. It must be also clear that a mere notice to the sheriff, by the attorneys of record, is not sufficient to justify him in refusing to pay the money collected under execution to the plaintiff. This would make the right of the attorney paramount to that of the plaintiff. So far as the attorney’s lien for fees went, he might be justified, but beyond that the plaintiff is certainly entitled to receive it, and a mere notice from the attorney is no excuse against the plaintiff’s legal right.

It would seem, from a receipt on the execution, that, after the motion was' overruled, the sheriff paid the money to the attorneys; but this cannot make a judgment correct which was erroneous when rendered. We must look at the case as it was presented to the court below. The only question is, did the case justify the judgment?

The sheriff, at the hearing of the motion, had the money in his possession; it was not even in court, and certainly he was bound to pay it over, when demanded, by express provision of the statute; and, having failed to do so, a judgment should have been rendered against him.

If we were compelled to decide between the plaintiff and his attorney, I should certainly not hesitate to give the preference to the plaintiff, although payment to either would be good. So that if both had been present, demanding it at the same time, the plaintiff’s right would have been undoubted. Beyond the mere commissions, it is difficult to perceive how a dispute between client and attorney could result otherwise than in favor of the client. If the attorney fails to pay over money, the court, on motion, will compel him to do so; and certainly it should not justify the sheriff in refusing to do that which he may legally do, and which the attorney himself would be bound to do. The attorney has no other right than as agent, and can do nothing to defeat the right of his client.

Judgment reversed, and judgment for plaintiff in error.