
    Case 62 — PETITION—
    October 24.
    Tracy & Loyd v. Hornbuckle and wife.
    APPEAL EROM GREENUP CIRCUIT COURT.
    1. Money due a common-school teacher can not be attached in the hands of the school commissioner.
    Funds due from the state to one of its employees can not be reached in the hands of a public officer by an attachment or garnishee.
    2. Transcript eor Court oe Appeals not indexed by the circuit clerk.- — Held, that inasmuch as the clerk of the circuit court failed to index this record, no fee should be taxed in his favor for making out the transcript.
    Corum & Bennet, ■........For Appellants,
    CITED
    2 Metcalfe, 422, Tobin, guardian v. Dixon and wife.
    2 Bibb, 91-95. 5 J. J. Marshall, 76.
    4 Metcalfe, 143. 16 B. Monroe, 183.
    Civil Code, sections 47-U478.
    Ed. F. Dulin,..........For Appellees,
    CITED
    Common School Laws, 1865, Myers’s Supplement.
    7 Monroe, 439, Devine v. Harvey.
    4 Bush, 8, Webb v. McCauley.
   JUDGE LINDSAY

delivered the opinion oe the court.

The amount due to appellee as the teacher of a common school could not be attached in the hands of a school commissioner. Sucb funds were due from tbe state to one of its employees, and, as tbe state can not be sued nor made a garnishee, parties will not be allowed to evade this inhibition by ignoring the state in their suits and proceeding directly against the public officer having the custody of the moneys sought to be reached.

The testimony of the two sons of Mrs. Hornbuckle, to the effect that the land conveyed to their mother was purchased with moneys earned by them, is indefinite and to some degree unsatisfactory; but as they testify positively to this fact, and are neither contradicted nor discredited, the circuit judge could not disregard their evidence.

The judgment of the circuit court must be affirmed.

Inasmuch as the clerk of the circuit failed to index this record, no fee shall be taxed in his favor for making out the transcript.  