Executor of Jesse H. Willis, vs. John S. Shepard, 2 Fla. 397

Baltzell, Justice delivered the following opinion: We have not been able to decide the important question presented to us in the argument of counsel, upon any rule or principle of law satisfactory to ourselves. The case in this Court is between Willis’s executor, appellant, and Shepard appellee, and there is also a cross appeal.

In the Court below it was entitled, Willis against Gatlin’s executors, and was commenced by rule as well against Shepard as the Sheriff and Moseley, ordering them to appear and shew cause why the Sheriff should not. pay over to Willis’s attorneys moneys arising from sale of certain slaves, &c. To this there was no answer by any one.

The trial seems to have progressed between Shepard and Willis until finally an order was passed for “ the distribution of the residue after deducting $405 the proceeds of sale of a negro from the amount in the registry of the Court.” 'Now we are not aware of any such. mode of proceeding at common law or by statute* as a rule between two individuals to try the right of money in the hands of a third person, the Sheriff There is no statute authorizing it that we are aware of, and by the common law and a special rule of Court also, a rule by way of attachment for contempt, was allowed against an officer to compel the payment of money when collected under execution.

But the jurisdiction is against the officer, and the authority is ample to compel obedience to the order of the Court. But where is the jurisdiction or authority for a rule of this kind between private individuals ? Suppose a judgment in the present case in favor of one or the other parties, how is it to operate ? Can it enforce obedience ? Neither of the parties has the money, and the Sheriff is not a party, nor does it appear from the record that he has the money in his possession.

To whom would the order be directed 1 , Wo see a difficulty in the order of the Court below to that effect — it is directed to no one. But there is another objection to the present mode of proceeding, Shepard is defendant in the rule, and required to show cause why the money should not be paid to Willis. He prefers no claim of his own, and according to legal principles no judgment could be given in his favor, yet in this Court and the Court below he claims, and is allowed, a share in the distribution.

The proper course, in our opinion, is for such claimant to take his rule against the Sheriff — the allowance of one will be the refusal of the others. By an order of consolidation all can be tried together, and in case of appeal by any, the stay of the others may be had as directed until final decision. In Blewitt vs. Nicholson, an application of a like character to decide questions raised in argument, and not by the case in the record was considered by the Court, and denied after mature consideration. We see no reason to change the determination then expressed. It is not matter of mere form, but of substance.

We consider it by far safer and more prudent, more ia the spirit of the constitution, and in harmony with the character of our institutions to keep within the range and limits of a rightful jurisdiction than to subject ourselves to the reproach of travelling beyond it, and exorcising a doubtful and questionable power. We are therefore of opinion that the order of the Court below be reversed and set aside, and this cause remanded for proceedings not inconsistent with this opinion.