Scherr v. Little

The Court: A writ of attachment was issued in this action, by virtue of which the Sheriff levied upon and took into his possession one thousand three hundred and ninety-nine dollars and eleven [616]cents coin, as the property of defendant. The money levied upon was claimed hy one Sharon, and the Sheriff notified the plaintiff of the claim and demanded an indemnity bond. The plaintiff gave a bond in the sum of one thousand three hundred dollars. The plaintiff also signed an agreement “ that the said Sheriff may retain for a reasonable time, as additional security against the claim of William Sharon, all moneys that may come into his hands by reason of said attachment or any execution to be issued in said action.” Afterwards, the plaintiff recovered judgment against defendant for one thousand five hundred and twenty-seven dollars and eighty-two cents and costs, and an execution was issued; the plaintiff demanded that the Sheriff apply the one thousand three hundred and ninety-nine dollars and eleven cents towards the satisfaction of the judgment. Sharon commenced an action against the Sheriff to recover the money levied upon, which action is now pending in this Court on appeal.

In the action now before us, the Court heloiv, on motion, directed the Sheriff to pay into Court and deposit with the Clerk the money levied upon, or pay the same to his successor in office holding the execution; and from that order this appeal was taken.

The question involved is the construction to be given to the agreement signed hy the plaintiff to the Sheriff, authorizing him to retain, for a reasonable time, as additional security against the claim of Sharon, all moneys, etc. The words “reasonable time ” should have reference to attendant circumstances or events. Eeasonable time connected with one set of circumstances, might be quite unreasonable, connected with other circumstances. In this case reasonable time is to be considered with reference to the fact that Sharon claimed the money and might endeavor to establish that claim in the Courts. He has so endeavored, and his action is now pending, and is still undetermined. The sheriff was to have, not only the bond, hut as “ additional security ” against the claim of Sharon, the possession of the money. We think, therefore, that the plaintiff has, hy his agreement, authorized the Sheriff to rely for his security not only on the bond, but on the money, and that he is not now entitled to the order.

Order reversed.