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GILFILLAN, C. J. The defendant Long was sheriff of the County of Waseca, and Stevenson was his deputy; executions issued against the property of Sherwins were delivered as follows: One in favor of Charles Shedd, to the sheriff himself, at 10:30 o'clock P.M. of March 19, 1877; one in favor of Chancy Hardin et al., and another in favor of J. S. Ricker et al., to the sheriff in person, at 2 o'clock A.M. of March 20; and one in favor of these plaintiffs, to the deputy, at 6 o'clock A.M. of the same day. The deputy levied this last execution at half-past six A.M. of the same day, and took possession of the property. About half an hour thereafter, the sheriff levied the three executions delivered to him in person, upon the same property, and, upon his request, the deputy delivered to him the plaintiffs' execution, and the possession of the property. The sheriff advertised the property for sale under several executions, not naming either of them, and sold the property, and applied the proceeds, after deducting his fees, to the payment in full of the Shedd execution, and the remainder upon the execution of Hardin et al., and returned the plaintiffs' wholly unsatisfied, whereupon plaintiffs bring suit against the sheriff and the sureties in his official bond.

The question presented is, whether the levy of an execution gives the execution creditor a lien upon the property, which entitles him to priority over other executions in the hands of the same officer against the same debtor, delivered to the officer before, but not levied till after, his? For these executions are all to be taken as delivered to the sheriff.1

It is the duty of the sheriff, upon a writ coming into his hands, to use due diligence in the execution of it. It attaches to the writs as they come into his hands, and it follows that it is his duty to execute first those which are first delivered to him. Upon several executions in favor of different creditors against the same debtor, it is his duty to the creditor in that first delivered, to execute that first; and to the creditor in the second, to execute that second; and so through them all. This is the duty he owes to the several creditors. But the rights of the creditors, as against each other, are not necessarily controlled by it.

At the common law, an execution bound the goods of the debtor from the time of the teste, even though they were subsequently transferred to a bona-fide purchaser. The statute 29 Charles II., c. 3, § 16, provided that the execution "shall bind the property of the goods against which such writ of execution is sued out, but from the time that such writ shall be delivered to the sheriff, under-sheriff or coroner, to be executed." Under the common-law rule, the execution operated as a lien in favor of the creditor for the satisfaction of his debt, from the time of the teste, and, under the statute, it operated as such lien from the time of its delivery to be executed.

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1 A brief discussion of the status of a deputy sheriff is omitted.

the latter would continue to be the rule, were it not for the provisions of the statute of this state. Gen. St. c. 66, § 269, enacts that “until a levy, property not subject to the lien of the judgment is not affected by the execution." So that the creditor acquires a lien on the property, by virtue of his execution, only from the levy. The property is not affected by the teste, nor the delivery to the sheriff. The levy fixes the rights of the creditor as to the specific property. It is argued that the statute 29 Charles II., and the General Statutes were passed only for the protection of bona-fide purchasers, and therefore do not affect the rights of execution creditors as against each other. If this were so, their rights would be controlled by the common-law rule, that the execution binds the goods from its teste, and the execution last delivered and levied might take precedence of all the others, because of the priority in its teste. We do not think the statute was intended to operate only as between the execution creditor and a bona-fide purchaser, as claimed, but it was intended to define absolutely, as its language indicates, the rights of the creditor as to the specific property, and as between him and all others.

The execution first levied, then, has the first lien on the property, though there may be others in the hands of the sheriff, which were delivered to him before the one levied. Russell v. Lawton, 14 Wis. 202; Knox v. Webster, 18 Wis. 406. The creditors in executions. afterwards levied cannot claim to be paid out of the property, until the one first levied is satisfied. This would be so in a contest between the creditors, and it must be so in a dispute between the creditor having the first lien by levy, and the sheriff. The remedy of the creditor in the execution first delivered is against the sheriff. If the latter, through negligence, omit to levy the first execution till a second has been levied, and loss thereby accrues to the first execution creditor, an action will undoubtedly lie.

It does not follow, however, from the tule of law that a sheriff and his deputies are regarded as one officer, that where several executions against the same debtor are placed, some in the hands of the sheriff in person, and others in the hands of his deputy, and in consequence thereof, and without actual negligence of the sheriff or deputy holding the execution first delivered, a subsequent execution is first levied, that the sheriff is liable to the creditor in the first execution. When it comes to a question of diligence, the law recognizes the fact that the sheriff and his deputy are different persons, though in theory one officer. And as it does not require impossibilities, it regards the question of diligence in view of that fact, and of what may naturally happen in consequence of it. Russell v. Lawton, 14 Wis. 202; Whitney v. Butterfield, 13 Cal. 335.

Order reversed, and new trial ordered.1

1 In many states, the rule of the Statute of Frauds still prevails; but in

ENDICOTT JOHNSON CORPORATION v.
ENCYCLOPEDIA PRESS.

SUPREME COURT OF THE UNITED STATES. 1924.

266 United States 285.

ERROR to a judgment of the Supreme Court of New York, entered on remittitur from the Court of Appeals, affirming a judgment against a garnishee.

MR. JUSTICE SANFORD delivered the opinion of the Court.

This case involves the constitutional validity of § 1391 of the New York Code of Civil Procedure relating to the garnishment of wages and other choses in action of a judgment debtor.

This section of the Code, as amended by the Laws of 1919, c. 278,1 provides that where a judgment has been recovered and an execution thereon returned unsatisfied, the judgment creditor may apply to the court without notice to the judgment debtor, and on satisfactory proof that any wages, debts, earnings, salary, income from trust funds or profits, are, or will thereafter become, due and owing to the judgment debtor, to the amount of twelve dollars or more per week, a judge or justice shall order that an execution issue against such wages, etc., of the judgment debtor. On presentation of such execution by the collecting officer to the person from whom such wages, etc., are or may become due and owing, the execution shall become a lien and continuing levy upon such wages, etc., to the amount specified in the execution, not exceeding ten per centum thereof, until the execution is fully satisfied. Any person to whom the execution is presented, who is or becomes indebted to the judg

other states, as in Minnesota, the execution lien arises only upon actual levy. See 2 Freeman, Executions (3d ed. 1900) §§ 200-201.

Suppose that the judgment creditor who first secures a writ of execution directs the sheriff not to levy, and that a second writ is obtained by another judgment creditor and actually levied. Which of the creditors is entitled to priority in the proceeds of the property levied upon? See Gilmore v. Davis, 84 Ill. 487 (1877); Wise v. Darby, 9 Mo. 131 (1845).

At common law, before there was any bankruptcy legislation, there was likely to be a race for priority between competing creditors of every insolvent debtor. But the rule was different in the Court of Chancery, where the maxim "equality is equity" was applied. Today, the rule of equal distribution to all creditors, originating in equity, has been taken over into bankruptcy legislation. However, under the federal bankruptcy statute it may still be possible for one creditor to obtain priority over others by levy and sale and particularly by attachment if made four months prior to the adjudication of the debtor as a bankrupt. This and related matters are fully considered in the course on Creditors' Rights and Administration of Debtors' Estates.

1 After the institution of this suit this section of the Code was reenacted as § 684 of the Civil Practice Act. Laws of 1920, c. 925. — NOTE BY THE COURT.

ment debtor, shall, while the execution remains a lien upon the indebtedness, pay over to the officer the amount of the indebtedness prescribed by the execution until it is wholly satisfied; and such payment shall be a bar to any action therefor by the judgment debtor. If such person fails or refuses to pay over to the officer the percentage of such indebtedness, he shall be liable to an action therefor by the judgment creditor; and the amount recovered shall be applied towards the payment of the execution. Either party may apply at any time for such modification of the execution as shall be deemed just.

The Encyclopedia Press, Inc., having duly recovered a judgment in the Supreme Court of New York against an employee of the Endicott Corporation receiving weekly wages of more than twelve dollars, was awarded, ex parte, under this section of the Code, an execution against his wages, directing the Corporation to pay over each week ten per centum thereof until the execution was satisfied. The Corporation failed and refused so to do, and continued to pay the employee his entire weekly wages as they became due.

The Encyclopedia Press thereupon brought suit in the Supreme Court against the Corporation, upon the execution, for the accumulated percentages of the weekly wages that it had not paid over. Judgment was recovered; which, upon successive appeals, was affirmed, without opinions, by the Appellate Division and the Court of Appeals. 200 App. Div. 847; 234 N. Y. 627.1 The record was remitted to the Supreme Court, to which this writ of error was directed.

The Corporation contends that § 1391 of the Code is in conflict. with the due process clause of the Fourteenth Amendment, in that it authorizes the issuance of a garnishment execution without notice to the judgment debtor or affording him a hearing, and, further, in that it interferes with the liberty of contract between the judgment debtor and the garnishee.

1. We assume for present purposes that a garnishee sued upon the execution has, by reason of the nature of the cause of action and the liability which this section imposes upon him, the right to challenge its constitutionality on the ground that it is wanting in due process as against the judgment debtor. See High v. Bank of Commerce, 95 Cal. 386.

The words "due process of law," when applied to judicial proceedings, "mean a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights." Pennoyer v. Neff, 95 U. S. 714, 733; Scott v. McNeal, 154 U. S. 34,

1 See the opinions of the Supreme Court and Appellate Division in an earlier case involving similar questions. 189 N. Y. Supp. 673; 199 App. Div. 194. — NOTE BY THE COURT.

46. They require a proceeding which, observing the general rules thus established, follows forms of law appropriate to the case and just to the parties to be affected; and which, whenever it is necessary for the protection of the parties, gives them an opportunity to be heard respecting the justice of the judgment sought. Hagar v. Reclamation District, 111 U. S. 701, 708. However, the established rules of our system of jurisprudence do not require that a defendant who has been granted an opportunity to be heard and has had his day in court, should, after a judgment has been rendered against him, have a further notice and hearing before supplemental proceedings are taken to reach his property in satisfaction of the judgment. Thus, in the absence of a statutory requirement, it is not essential that he be given notice before the issuance of an execution against his tangible property; after the rendition of the judgment he must take "notice of what will follow," no further notice being "necessary to advance justice." Ayres v. Campbell, 9 Iowa, 213, 216; Reid v. Railway Co., 32 Pa. St. 257, 258; Foster v. Young, 172 Cal. 317, 322; McAnaw v. Matthis, 129 Mo. 142, 152.

There is no more reason why the judgment debtor should be entitled to notice before the issue of an execution provided by statute as supplemental process to impound, in satisfaction of the judgment, choses in action due to him which cannot be reached by an ordinary execution. No established rule of our system of jurisprudence requires that such notice be given. On the contrary, it has been frequently held in the state courts that, in the absence of a statutory requirement, it is not essential that the judgment debtor be given notice and an opportunity to be heard before the issuance of such garnishment. High v. Bank of Commerce, supra, p. 387; Coffee v. Haynes, 124 Cal. 561, 565; Ketcham v. Kent, 115 Mich. 60, 63; Hexter v. Clifford, 5 Col. 168, 173; Kesler v. St. John, 22 Iowa, 565, 566; Phillips v. Germon, 43 Iowa, 101, 102; Smith v. Dickson, 58 Iowa, 444, 445; Pistchal v. Durant, 168 App. Div. 100, 102. And see Daigle v. Bird, 22 La. Ann. 138, 139; Chanute v. Martin, 25 Ill. 63, 65; Cross v. Brown, 19 R. I. 220; Winner v. Hoyt, 68 Wis. 278, 286. In High v. Bank of Commerce, supra, in which the constitutionality of a garnishment statute was challenged because it did not require notice to the judgment debtor before issuance of the writ, the court said: "So far as the judgment debtor is concerned, he cannot complain; he is a party to the judgment, and is fully aware of the legal effect of it, viz., that what his debtors owe him can be applied, by proper proceedings in the action which is still pending, to the satisfaction of his judgment debts; and due process of law has been had to make him aware of that fact. If, then, anything is due from his debtor, he is not injured if it is so applied. If nothing is due him from such debtor, then the matter is of no concern to him.1 . . . We

1 Indicated omission in original report.

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