Weicht v. Auto. Banking Corp. , 158 Pa. Super. 430 ( 1945 )

Final judgment in replevin had been rendered, no appeal had been taken, and the writ of de retorno habendo had been executed by the sheriff who held the automobile subject to appellee's demand. The writ had become virtually functus officio, and the law was relaxing its custodial grasp upon appellee's property. Yet, disregarding what I think are the realities of the case, the. Court holds that the automobile was still in custodia legis. The end-result is that a Pennsylvania litigant is compelled to pursue appellee to the Delaware courts unless, perchance, appellee is registered in this Commonwealth, and this is improbable. Appellant's right to another writ is illusory for, under this decision, he must time his action with such precision that the writ is lodged with the sheriff in the momentary interval between the sheriff's manual delivery and the swift departure of appellee's agent with the automobile to parts unknown.

"In custodia legis" is an obscure label which medieval judges formulated without accurately describing the content, the boundaries, or the contours of the dogma which it covers. Still, no court has declared that in this factual situation property is in custodia legis, or, to recall another alluring metaphor, "in gremio legis". Not even the text writers whom the majority calls to its assistance completely sustain its view. Take 7 C.J.S., Attachment, § 88, as an instance. That section vindicates my view as well as that of the majority. A portion of it is quoted: "As a general rule, property that is in custodia legis is not subject to attachment prior to fulfillment of the purpose for which it isheld. In the absence of statutes providing therefor, as a general rule, property that is in custodia legis is not subject to attachment without leave of court; but after the fulfillment ofthe specific purpose for which the fund or property is held, the writ may be enforced against it, or any surplus remaining, unless the court otherwise directs." (Italics supplied.) 4 Am. Jur., Attachments and Garnishment, § 387, does indeed stand for the proposition which the Court has adopted, but a few pages farther on (§ 395) I read: "Property isattachable or garnishable in the possession of a sheriff or otherofficer after it has been discharged from a previous attachment,garnishment, or execution." (Italics supplied.)

Property in the possession of a Pennsylvania sheriff is not sacrosanct in all circumstances. Were it so, there would be no place in our law for the rules of successive levies which are treated in 10 Standard Pa. Practice, Attachment, § 57, the section immediately following that cited by the majority. See also 7 Standard Pa. Practice, Enforcement, §§ 95, 160. If there are distinctions between writs of execution and writs of foreign attachment, so that under one you can touch and hold and even sell property in the custody of the sheriff and under the other you cannot as much as touch it, the differences are too shadowy and subtle for me to perceive them. Nor has any case come to my notice which has demonstrated logical reasons for the discrimination.

The cases upon which the majority relies come nowhere near meeting the facts of the instant case, Ross v. Clarke, 1 Dallas 354, was decided in 1788, the facts are only sketchily reported, and it does not appear that the court had ordered the prothonotary to pay the money in his custody to Clarke. Without that indispensable additional factor, Ross v. Clarke is not analogous to the case at bar, and does not control it. Riley v.Hirst, 2 Pa. 346, merely holds that an attorney-at-law is not a public official. In Bulkley v. Eckert, 3 Pa. 368, 369, the money sought by an attachment-execution was held by a school district treasurer, as stated by the court, "in common with other money"; no part had been set aside, segregated, or marked to the use of the execution-defendant; and the treasurer was not in possession of a chattel legally adjudicated the property of the execution-defendant. Moreover, the decision might have been more properly rested upon the Act of April 15, 1845, P.L. 459, § 5, 42 Pa.C.S.A. § 886, prohibiting the attachment of "the salary of any person in public or private employment".

Although the quotation from Braun v. DeRosa, 128 Pa. Super. 318,327, 194 A. 514, 518, is obiter dicta, I do not question the principle. The sheriff is not appellee's agent, but he certainly is appellee's bailee. No principle is more firmly imbedded in our law than that goods seized by a sheriff pursuant to a writ of execution are held by him as the bailee of the execution-plaintiff. Hartleib v. McLane's Administrators, 44 Pa. 510; Com. v. Weglein, 147 Pa. Super. 257, 24 A.2d 633;Crawford v. McMahon, 69 Pa. Super. 19; Reece v. Rodgers,40 Pa. Super. 171. Agent or bailee, the difference is inconsequential in this case; the fact is that the sheriff has possession of the automobile by virtue of a writ of execution; the law is that he holds it for appellee. And, since the sheriff holds only bare possession for appellee without the right to use the property, or to do anything in relation to it, except to deliver it to appellee, the sheriff's tenure as a bailee is custodial only, and therefore so insubstantial that one can readily and plausibly argue, and the appellant is not without logical and authoritative support in asserting, that appellee had constructive possession of the automobile. See 42 Am. Jur., Property, § 42, 6 Id., Bailments, § 91. However, it is not necessary to rely wholly upon that principle.

I am arguing that the rule enfolded in the expression, "in custodia legis", does not require us to affirm the dissolution of the instant attachment. To make my point, I am not obliged to question the rule itself; yet I cannot refrain from saying that if the rationale which the majority has discovered in Bulkley v.Eckert, supra, is the only predicate for the rule, it has little, if any, rational basis in these days. Mr. Justice SERGEANT was writing in the more spacious days of a hundred years ago, and I can understand that then it may have been reasonable to immunize a school district treasurer, who was probably enjoying an honor without an honorarium, against attachments. Whatever the sonorous phrases like "great public inconvenience", "being stopped in the routine of their business", "delay, embarrassment, and trouble", may have meant to judges of another day, they leave me cold and unresponsive. If the rule is to be sustained upon reason, sounder reasons must be found to support it. To my way of thinking, the rationale upon which the majority relies for its conclusion most certainly does not apply to sheriffs in this day and generation. A hundred years ago sheriffs were paid in fees, and to call them from their farms, stores or taverns to give attention to business from which they derived no additional remuneration may have imposed a slight inconvenience. Now they are paid salaries, and many of them are supplied with counsel, paid by the county, who "appear in court", for them and on their behalf can "answer interrogatories", "take care that the proceedings are regularly carried on and bail to return duly given." True, the sheriff of Franklin County is not entitled to a solicitor, and, perhaps, counsel fees are not an expense incurred in the performance of his duties for which he is entitled to reimbursement by the county. See Act of March 24, 1927, P.L. 68, No. 46, § 1, 16 P. S. § 2461. But the pother about retaining counsel which appealed to the sympathies of judges a century ago has been effectually allayed by statutes since enacted which provide ample counsel fees for sheriffs summoned as garnishees in foreign attachment. See Acts of April 22, 1863, P.L. 527, § 1, 12 Pa.C.S.A. § 2999; June 11, 1885, P.L., 107, § 1, Id. § 3000; April 29, 1891, P.L. 35, § 1, Id. § 3001. At least that reason for the rule has evaporated. If other substantial reasons support its social value in modern jurisprudence, they have not been disclosed to me.

Granting that inconvenience, delay, embarrassment, and trouble should be weighed in forming judgment, how about the inconvenience and trouble imposed upon this appellant who is turned out of our courts, and compelled to seek a remedy in another jurisdiction? For my part, balancing the onerous inconvenience and vexatious trouble appellant must endure against the trifling and slight duties which would be cast upon the sheriff, I cannot, uncritically following an ancient legal fiction, deny him access to the courts of his own state.

I would reverse the judgment and reinstate the writ of foreign attachment.

Judge ARNOLD has authorized me to state that he joins in this dissent.