
    Remelin v. Butterworth et al.
    
      Attachment and garnishment — Interpleader funds held by clerk of court not subject thereto, when — Funds in custodia legis not subject to attachment or garnishment — Attorney’s lien cannot attach to funds held by clerk, when.
    
    1. Funds held by clerk of court of common pleas on inter-pleader cannot be garnisheed by creditor of claimant to such funds prior to judgment finding such claimant entitled to them in view of Section 11829, General Code.
    2. In absence of express statutory authority therefor, funds in custodia legis are not subject to either attachment or garnishment.
    3. No attorney’s lien can attach to funds held by clerk of court of common pleas on interpleader in favor of attorney of claimant to such fund prior to judgment finding such claimant entitled to them.
    
      [1] Garnishment, 28 C. J. § 82; [2] Attachment, 6 C. J. §391; Garnishment, 28 C. J. §81; [3] Attorney and Client, 6 C. J. § 394 (Anno.).
    
      (Decided December 7, 1925.)
    Error: Court of Appeals for Hamilton county.
    
      Mr. Frank E. Wood and Mr. Edgar M. Powers, for plaintiff in error.
    
      Mr. Lester B. Butterworth, for defendants in error.
   Hamilton, J.

Defendants in error, plaintiffs below, brought an action in the court of common pleas against Margaret Hall Remelin and Griffith Hall Remelin, for services as attorneys.

This suit was filed on November 21, 1924, and on the same day plaintiffs filed an affidavit in attachment and garnishment, which recited:

‘ ‘ That the clerk of the court of common pleas of Hamilton county has money and funds belonging to the defendant that ought to be garnisheed and attached.”

The order of attachment was served on Louis J. Huwe, clerk.

On December 3, 1924, Louis J. Huwe, clerk, garnishee, made the following answer:

“Now comes Louis J. Huwe, duly elected, qualified, and acting clerk of the courts of Hamilton county, Ohio, and says that he has in his hands the sum of $4,931.20, on order of interpleader, dated August 16, 1924, minute No. 1296, in case No. 188699, Griffith Hall Remelin et al. v. Metropolitan Life Insurance Company, which money he is holding for the further order of the court.”

On March 5, 1925, the defendants, Margaret Hall Remelin and Griffith Hall Remelin, separately-moved to discharge the attachment. The court of common pleas sustained the motion as to Griffith Hall Remelin, but overruled the motion and refused to discharge the attachment as to Margaret Hall Remelin.

From the overruling of this motion and the refusal to discharge the attachment, Margaret Hall Remelin prosecutes error to this court.

It appears from the record that the plaintiff in error, Margaret Hall Remelin, Griffith Hall Remelin, and the administrator of the estate of Marshall Remelin, deceased, were contending parties in case No. 188699, in the court of common pleas, for the proceeds of a certain policy of life insurance on the life of Marshall Remelin, deceased. On application supported by affidavit of the Metropolitan Life Insurance Company, an order of interpleader was entered, and on October 5, 1924, the Metropolitan Life Insurance Company, by order of court, paid to the clerk of courts the proceeds of that policy, and was discharged.

The trial of the case was concluded on November 21, 1924, resulting in a verdict for Margaret Hall Remelin. On the same day the plaintiffs instituted this action and proceedings in garnishment.

On November 29, 1924, judgment was entered on the verdict for Margaret Hall Remelin.

The important question in the case is: May funds in the custody of the clerk of the court of common pleas, held by him under order of court, on inter-pleader be garnisheed by a creditor of one of the claimants to the funds, prior to judgment finding such, claimant entitled to the funds and ordering the same paid to such claimant?

The law applicable is well stated in a note in 13 L. R. A. (N. S.), p. 758, in the following language:

“In the absence of express statutory authority therefor, it is settled law that, in general, funds in custodia legis are not subject to either attachment or garnishment.”

Many cases are cited in support of this rule. Some of the cases hold that such funds are not subject to garnishment, even after an order of payment has been made, while other authorities hold that such fund may be garnisheed or attached after distribution or order of payment is entered. The cases holding that such funds are subject to garnishment or attachment, after payment ordered, put it on the ground that the reason for the rule that such funds are not subject to garnishment or attachment, while in custodia legis, had ceased, and that such a proceeding would no longer tend to embarrass judicial or other official proceeding in the administration of the property. This phase of the case need not concern us, for the reason that the garnishment and attachment were issued prior to the judgment entered in favor of Margaret Hall Remelin, and ordering payment to her.

It is therefore clear that, unless there is express statutory authority for attaching the funds in this case, the attachment should be discharged. The only section of the statute that in any way might bear on the question is Section 11829, General Code. The pertinent part of that section is as follows:

“The service of process of garnishment upon the sheriff, coroner, clerk, constable, master commissioner, marshal of a municipal corporation, or other officer having in his possession any money, claim, or other property of the defendant, or in which the defendant has an' interest, shall bind it from the time of service, and be a legal excuse to such officers, to the extent of the demand of the plaintiff, for not paying such money or delivering such claim or property to the defendant, as by law, or the terms of the process in his hands, he would otherwise be bound to do.”

The effect of this statute has been considered in this state only in the case of Orlopp v. Schueller, Adm’r., 72 Ohio St., 41, 73 N. E., 1012, 106 Am. St. Rep., 583, 2 Ann. Cas., 919. The court in passing upon the question whether or not property or money held by the executor or administrator of an estate, in his representative capacity, could be attached or garnisheed, decided that the same could not be reached by attachment or garnishment in the hands of an administrator or executor. In the course of the opinion it is stated, at page 58 (73 N. E., 1014):

“It will be observed that this statute * * * undertakes only, as stated in its title, to define the effect of service of the process of garnishment upon public officers.”

Our Supreme Court’s view, as indicated by this expression, must have been that the statute did not change the law as to the status of funds in custodia legis, but sought to protect the officers, by announcing the effect of service upon them.

Under the facts of this case, as shown by the answer of the garnishee clerk, as well as by the record at the time the attachment was levied and process of garnishment issued, Margaret Hall Remelin had no interest in this fund. The clerk was in no wise her debtor. The court had not, at that time, determined to whom the fund belonged. The clerk was not at that time custodian of any property belonging to Margaret Hall Remelin. Such being the case, the fund was not subject to either attachment or garnishment at the time the proceedings in garnishment were instituted, and the trial court committed error in refusing to discharge the attachment.

Counsel for defendants in error in the brief makes claim of a lien on the funds as attorney in the case. This could only be considered from the standpoint that counsel had, by his service,' created and brought into court the fund in question. That is not the case here. The question here was who was entitled to the fund paid into court voluntarily by the defendant insurance company. Under these circumstances, no attorney’s lien could attach.

The judgment overruling the motion to discharge the attachment will be reversed, and a judgment rendered herein discharging the attachment.

Judgment accordingly.

Buchwalter, P. J., and Cushing, J., concur.  