Weicht v. Automobile Banking Corp.

Argued November 20, 1945. This appeal is brought by the plaintiff who commenced an action in assumpsit by causing a writ of foreign attachment to be issued. The writ was dissolved by the court below because the property sought to be attached was in the hands of the sheriff under a writ of de retorno habendo.

The defendant and appellee, a Delaware corporation, hereinafter called the corporation, instituted an action of replevin against the plaintiff to recover the possession of an automobile. Plaintiff filed his bond in the sum of $2000 and retained possession. The corporation was granted a rule for judgment for want of a sufficient affidavit of defense, and after argument the rule was made absolute and judgment entered for the corporation. In execution of the judgment, the corporation issued a writ of deretorno habendo. On April 19, 1945, at 8:30 A.M., the sheriff served the writ and took possession of the automobile. Two hours later, at 10:30 A.M. the writ of foreign attachment was issued at plaintiff's instance and received by the sheriff. The automobile was still in the sheriff's custody, not having been returned to the corporation. The sheriff's return to the writ of foreign attachment answered that the automobile was in the sheriff's custody by virtue of the writ of de retorno habendo. On the corporation's motion, the learned court below dissolved the writ of foreign attachment, holding that the property was in the custody of the law and therefore not liable to attachment.

It is well settled and recognized by the weight of authority that property in the custody of the law is not subject to attachment. 10 Standard Pa. Practice, Attachment, § 56, p. 255; 7 C.J.S. Attachment § 88, p. 258; 4 Am. Jur., Attachment and Garnishment, § 387, p. 797. The rule was very early established in Pennsylvania in Ross v. Clarke, 1 Dallas 354, where it was held that money paid into the hands of the prothonotary was ". . . to be considered in the same state as if it had been paid into the hands of the sheriff . . ." and was not the subject of a foreign attachment. See also Riley v. Hirst,2 Pa. 346, and Bulkley v. Eckert, 3 Pa. 368. Appellant, however, contends that the general rule is not applicable to the instant case. It is his theory that after the final judgment of the court distributing the property to the corporation, the property was constructively in the hands of the corporation and the sheriff held it as the corporation's agent. We do not agree with this contention.

"The sheriff is an officer of the court, charged with the duty of executing the process of the court. . . . He is no more theagent of the city or school district than he is of the executioncreditor . . .:" (Italics supplied.) Braun, Sheriff, to use ofLouik, v. De Rosa, 128 Pa. Super. 318, 327, 194 A. 514,518. Property in the hands of the sheriff on an execution writ remains in custodia legis until the final step is taken and the property is delivered to the judgment creditor. As long as the property is in custodia legis, it cannot be attached. The rationale of this decision is supported by the reason for the general rule which is clearly set forth in Bulkley v. Eckert, supra. "His situation [treasurer of a school district] does not appear to us to be distinguished from that of a sheriff or prothonotary, who has money in his hands as a public officer; and it has been determined that these are not liable to the process of attachment. Great public inconvenience would ensue, if money could be thus arrested in the hands of officers, and they be made liable to all the delay, embarrassment, and trouble that would ensue, from being stopped in the routine of their business, compelled to appear in court, employ counsel, and answer interrogatories, as well as take care that the proceedings are regularly carried on, and bail to return duly given. If a precedent of this kind were set, there seems no reason why the state or county treasurers, or other fiscal officers of the Commonwealth, or of municipal bodies, may not be subject to the levying of attachments, which has never been attempted nor supposed to come within the attachment law."

The decree is affirmed.