Dale v. Brumbly

Jones, J., delivered the opinion of the Court. In this case it appears that the appellee is the widow of William Brumbly and as such widow became entitled to a share in the proceeds of an insurance upon the life of the said William Brumbly in the Improved Order of Heptasophs. This insurance money was, in the course of equity proceedings, affecting its distribution, in the Circuit Court for Wicomico County, by an order of that Court deposited with the Clerk thereof. The appellant held a judgment against the said William Brumbly and the appellee to the amount of $878.30, with interest from July 3rd, 1894, and costs.

In the progress of these equity proceedings in which the order of ⁴⁶⁹ the Court was passed for the deposit of the money above referred to an auditor’s account was stated in which there was distributed to the appellee the sum of $922.88. This audit- or’s account was ratified by the Circuit Court for Wicomico County on the 10th day of April, 1903; and on the following day, April nth, 1903, the appellant had issued upon the judgment held by him against the appellee and her deceased husband, an attachment and procured the same to be laid in the hands of the Clerk of the Court, James T. Truitt, to bind the sum of $922.88 awarded by the auditor’s account to the appellee. The order of Court ratifying the auditor’s account was in these words: “The above audit and distribution is hereby ratified and confirmed and the Clerk of this Court is directed to pay over the fund accordingly, dated April 10th, 1903,” and was duly signed by the Judge. Upon motion of the appellee through her counsel, and after answer to the said motion by the appellant and hearing upon an agreed statement of facts, in substance the same as those herein set out, the Court below, on the 6th of July, 1903, quashed the attachment issued against the appellee and gave judgment for her for costs.

From such judgment this appeal was taken. Upon behalf of the appellee it is claimed that at the time of the attachment laid the money attached was in custodia legis and exempt from attachment. It is not disputed, as we understand, that money paid into Court, as the funds in this case were, pending the adjudication of questions made as to who were entitled to be paid the same, cannot be attached. This was enunciated as the law in the case of Farmers Bank of Del. v. Beaston, 7 Gill & John. 421 (see p. 428), and we conceive that to be settled.

It is contended on the part of the appellant that this principle or rule of practice does not apply in the circumstances of this case because after the rights of the parties had been adjudicated as respected the fund in Court, the shares of the several parties in interest ascertained and fixed; the auditor’s account by which this was made to appear ratified; and the Clerk had been directed to pay out the money accordingly, the share of any distributee of the ⁴⁷⁰ fund is liable to attachment as if the funds were in the hands of a trustee in equity under a like state of facts. In the case of Mattingly, Receiver, &c., v. Grimes, Assignee, &c., 48 Md. 102 , where real estate was sold by a trustee under the decree passed in the cause, and an auditor’s account, distributing the funds had been stated and ratified; and an attachment was laid in the hands of the trustee to affect the share of one of the distributees in the fund ' it was held expressly that the funds were not liable to the process of attachment because they had, prior to the attachment, been paid into Court under an order to that effect. It, then, comes back to this—where was the custody of the fund in controversy here when the attachment in this case was laid? To this there would seem to be but one answer.

The custody was certainly with the Court up to the time of it’s direction to the clerk to pay it out. Such direction to the clerk, did not and was not meant to change the custody of the fund. Any particular part of the fund that the clerk was to pay out was not separated from the whole fund until it was actually being paid over. Until then it was not distinguishable from the whole fund as respected the custody.

The direction to the clerk to pay out the fund did not put it into his possession and control further than it had been prior to such direction. He was to pay it out from the custody in which it was. In pther words he was merely, figuratively speaking, the hand of the