Pundt v. Clary , 13 Neb. 406 ( 1882 )

Maxwell, J.

The defendant in the year 1881 was treasurer of the city of Crete. In May of that year, one William Gasser published in a newspaper of that city a notice that by the first day of June of that year he would apply to the ciiy council for license to sell intoxicating liquors in that city. The application for license and bond were filed June 1st, and the application was granted, bond approved, $500 — the amount of the license — -paid to the defendant as treasurer of said city, and the license issued to Gasser on or about the thirtieth of June, 1881, and on or about July 1st, 1881, and after the license was issued, the defendant passed the amount thus received to the credit of the school district of Crete, of which district he was treasurer. In October of that year, an execution against Gasser having been returned unsatisfied, proceedings in garnishment were instituted before a justice of the peace against the defendant .to require him to pay the plaintiff’s claim out of the $500 license money in his hands as treasurer, upon the ground that the license was illegal.

The justice discharged the defendant and dismissed the proceedings. The case was taken on error to the district court, where the judgment was affirmed.

The only question to be determined is, can a license to sell intoxicating liquor, issued by the proper authority and not void on its face, be attacked collaterally. We think not. A number of objections are made to the license which in a direct proceeding for that purpose might be sufficient to set it aside. But it is not void, and cannot be attacked in this collateral manner. Gasser had accepted the license, and at the time the defendant was garnished was selling liquor under the authority thus conferred. He could not have maintained an action against the defendant to recover the money paid for the license. Has a creditor any greater right of action in a case of this kind than the party himself?

Clearly not; because it is an invariable rule that under no circumstances shall the garnishee, by operation of the ' proceedings against him, be placed in a worse condition than he would be in if the defendant’s claim against him were enforced by the defendant himself. Drake on Attachment, sec. 462. It is very clear that Gasser was not in a situation to maintain an action against the defendant to recover the amount paid for the license, and the plaintiffs have no greater right than he possessed. There is no error in the record and the judgment is affirmed.

Judgment affirmed.