City of Los Angeles v. Knapp

McCOMB, J.

This is an appeal from an order denying appellant’s motion to require the clerk of the superior court to pay appellant $875 on deposit in an interpleader suit entitled

City of Los Angeles

v.

Knapp.

The material facts are these:

Appellant through mesne assignments became entitled to the sum of $875, which sum had been previously assigned to W. W. Middleeoff for attorneys’ fees in a condemnation action and deposited with respondent clerk in an interpleader action entitled

City of Los Angeles

v.

Knapp.

In this latter action our Supreme Court decided that appellant was entitled to the aforesaid sum. Thereafter N. F. Weston filed an action against W. W. Middleeoff, obtained the issuance of a writ of attachment, and served a garnishment on respondent clerk, attaching the property of W. W. Middleeoff standing in his name or that of appellant, whereupon respondent clerk refused to pay petitioner the sum in question.

Subsequently appellant obtained an order to show cause in the interpleader action,

City of Los Angeles

v.

Knapp

(a case in which N. F. Weston, the plaintiff in the attachment suit was not a party) directed to respondent clerk to show cause why he should not be required to deliver said sum of $875 to appellant. At the hearing of this motion the trial court refused to determine the title to the sum in dispute.

These are the questions presented for our determination.:

First: Was the fund on deposit in the interpleader action in custodia legis and subject to garnishment?

Second: Did the trial court properly refuse to determine title to the fund in dispute on an order to show cause issued in an action wherein the attaching creditor was not a party?

The first question must be answered in the affirmative. The general rule is that property

in custodia legis

is not subject to garnishment. An exception to this general rule is: If a party has a right to a certain distributive share of a fund