Remington v. Weber

39 P. 822, 11 Utah 181, 39 P.R. 822, 1895 Utah LEXIS 49

• Court: Utah Supreme Court
• Decided: March 16, 1895
• Docket: No. 544
• Status: Published

Opinion

Smith, J.:

This action was commenced against the defendant by "the plaintiffs to recover, on what is claimed to be the first cause of action, the sum of $600. It is alleged that the plaintiffs are entitled to recover this amount by reason of the fact that the sheriff wrongfully, illegally, and unlawfully conducted himself in the service of certain attachments in favor of the plaintiffs and against the firm of Young & Adderly. The plaintiffs sued out an attachment • against Young & Adderly, who were merchants in Park City, and delivered the writ of attachment to the defendant for service. He levied upon a stock of goods under ■ such attachment, and also seized the account books of the firm of Young & Adderly. Upon the same day that the .account books were seized, M. E. Smith & Go. sued out .an attachment against Young & Adderly. The attorneys for plaintiffs lived in Salt Lake City, while the attorney for Smith & Go. lived in Park City. The attachment in favor of the plaintiffs was levied on the 16th day of November, 1891, and the attachment in favor of M. E. ■ Smith & Co. was levied upon the same property on the 17th day of November, 1891. Under this attachment in favor of Smith & Co. the defendant garnished some 25 persons owing money to the firm of Young & Adderly, .and from these garnishees afterwards collected $454. He paid this money over to Smith & Go., and this money is the subject of controversy upon this appeal. The facts, so .far as they are necessary to be further stated, are that Williams & Bonta, attorneys for the plaintiffs, on the 17th -day of November, sent a letter to defendant, Weber, telling him to garnish two certain mining companies, •debtors of Young & Adderly, naming them, and then, leaving certain blank lines in their letter, instructed the sheriff on another sheet of paper to fill in the names of all persons who owed the firm of Young & Adderly into the blank spaces, and garnish them; the sheriff at the-time having seized the books of account. On the same-day (but it is doubtful which was received first) Smith & Co., by their attorney, handed to the sheriff writs of' attachment, filled out, and directed the sheriff to garnish the persons mentioned in his return, and from whom he-subsequently collected the money. It is admitted that Snyder had gotten the names of those persons from the books of account which the sheriff had in his possession.

Section 3314 of the Compiled Laws of Utah provides:- “ TJpon receiving information in writing from the plaintiff or his attorney that any person has in his possession or under his control, any credits, or other personal property belonging to the defendant, or is owing any debt to defendant, the officer making the service must serve upon such person a copy of the writ,” etc. It is not disputed by the appellants, as we understand it, that the directions given by the attorney of Smith & Co. to the sheriff was a-complete compliance with this statute, and it is not denied that the sheriff had the Remington writ in his hands-before he received the Smith writ. The only point of serious-controversy is whether, under the facts, the Remington writ should be considered as levied upon the debts in the-hands of the garnishees prior to the Smith writ. There was no direction in writing from the attorney of Remington to garnish these particular persons. His letter was. written containing the names of two garnishees, and there is no question about them in this case, and the blank space was left, with the direction to the sheriff to fill in the names of the other debtors of Young & Adderly from the books in his possession. We think, under the statute just cited, that it is the information in writing from the plaintiff, or bis attorney which directs and controls the •action of the officer in serving the garnishees. The provision of the statute is undoubtedly for the protection of the officer to prevent his being sued for not levying the writ. This being so, it would seem to follow that the benefits of the statute only accrue to him who complies with it. The officer is not required to do anything except pursuant to the statute, and the plaintiff who does not give him the statutory direction cannot complain if he fails to make the levy upon the writ in his favor. 2 Freem. Bx’ns, 262. We do not intend to hold — because it is not necessary to a decision in this case — that the sheriff would not, under any circumstances, be liable for. a failure to serve the garnishment when he received no instructions in writing; but where, upon the same day, he receives two writs •of attachment, one accompanied by the proper instructions •and the other not accompanied by such instructions, what we do hold is that it is his duty to obey the instructions •of the more vigilant attaching creditor. The court below ■held that the plaintiffs were entitled to recover nothing upon this cause of action. We think this conclusion is ■correct.

Many other questions are raised upon the appeal, which we do not deem it necessary to discuss in this action, as the question we have decided seems to dispose of it. A motion was made to dismiss the appeal for the reason that ■the'plaintiffs had accepted satisfaction of judgment against the defendant, rendered in the court below upon a so-called second cause of action.” It is not necessary to decide, in this case, whether the second claim or item set out in the complaint, and for which the plaintiffs recovered judgment, is properly stated as a second cause of action. It may well be doubted whether this action is anything more than an action against the sheriff for false return, and the •cause of action single. However, as we think the judgment sbonld be affirmed npon the merits, it is not neces-. sary to dispose of the motion to dismiss the appeal. The judgment is affirmed.

BaRtgh and King, JJ., concur.