Clymer v. Willis

3 Cal. 363

• Court: California Supreme Court
• Decided: October 15, 1853
• Status: Published

Opinion

Heydenfeldt, Justice,

delivered the opinion of the court. Wells, Justice, concurred.

The remedies of attachment and garnishment are the creatures of statute, and cannot be extended to cases not named in the act.

Money in the hands of the sheriff collected on execution, is not a debt due to the plaintiff in execution, but is in the custody of the law until finally and properly disposed of. It cannot therefore be the subject of attachment or garnishment. If the attaching creditor of the plaintiff in execution was otherwise remediless, it may be that chancery would afford relief by process of sequestration, but this we are not now called on to decide.

A striking irregularity in this case is the attempt of the sheriff to attach what was in his own hands. The sheriff acquires a special property in whatever comes to his hands, by virtue of his office, and if it is at any time subject in his hands to other process, to which he must necessarily be a party, such process must be executed by the coroner.

The judgment is reversed, and the cause remanded.