, 1892-05-13
PETITION DENIED.
From the superior Court Of Jeffer-
son County.

A Case Relative 10 money PAID to
She Clerk by the sheriff of the
County as Proceeds Of a Certain
sale.
TNotice-All decisions Of the supreme
courtwill appearin in THE DAILY and WEEK
LY TRIBUNE.
State ex rel. Gordon ct al, relators VS.. su-
superior court of Jefferson county ct al,
respondents.
No. 456-Hhis was a proceeding of SINH,
lar character to that of state ex rel Schloss
/ VS. superior court, just decided The diff
ferences were, that in the case above
named the fund was in the hands of the
court, as the proceeds of sales of attached
property of the debtor Levy, made by a
receiver heretofore appointed by the
court, and a special proceeding was lnsti-
tuted by the several Judgment creditors
I who Joined in an agreed statement of facts,
and submitted the question of priorities of
lien to the court for its decision, all parties
thus being parties to the proceeding, and
being bound by the judgment; whereas, in
the case under consideration, the relators
/ by their eX parte motion asked the court to
direct the clerk to pay to them certain
money paid in to him by the sheriff as pro-
ceeds of a sale of other of Leyy's property
under an execution issued by the State
Bank Of Washington. The court denied
the motion as made, and without any au-
/ thOrlty, as we think, found that the iudg-
ment Of the bank had been satisfied, and
ordered the money to be applied to the
satisfaction of the Judgment Of one Joseph
Levy, who was not in court and was. not
asking any relief in the premises.
The REALTORS gave notice of an appeal
from this order, filed their bond for d
/ SnnnrSn0PqG and Aopoa19A bof 1,o
\ superior court and the judge thereof be
prohibited from taking certain action look
! ing to the payment of the money to Joseph
Levy. A few days after the filing of the
bond court bailiH summoned the attorney
/ for the relators into the presence Of the
court, where the attorney for Levy orally
demanded the execution of the order ap-
4 pealed from, and the drawing and delivery
to him Of a check for the money by the
/ judge and clerk; and it is said that they
4 threaten to comply with this demand to the
i defeat OF the appeal taken to this court.
We hold the proper view of this case to
be that the REALTORS had no right to make
an ex parte application as they did, and
that the court had no jurisdiction to make
any order thereon. Something is stated
about rule of the court which does not
permit the clerk to pay out money "in the
registry OF the court, without the Judges
PERMISSION evidenced by his cOunter-signa.
ture Of the clerks check. II there be such
a rule it is probably a good regulation
when money comes into the registry of the
court, as it may be termed, as it did come
IN the Schloss case, through the interven.
tion of the courts receiver. But this
money did not get into the clerks hands
in that way, and was not in the registry
and neither the court nor the Judge had
any control over it, except by proper pro
ceedlngs to bring the matter up which
must include the clerk and all parties as
serting claims.
When money is made upon execution by
sheriff, section $50 of the code makes il
bis duty to pay the same to the clerk, who
must Immediately notify the party tc
whom the same is payable, and pay it oyel
to him on demand. Both Of these officers
tali OF this duty under severe penalties, and
are liable upon their bonds therefor. and
the clerk would certainly be liable if be
paid to the wrong party for all that was
thus lost to the one entitled. 1t may vel
be, however, that in cases where there are
numerous attachments or executions, out
of which conflicting claims arise, there NAV
F be summary appeal to the court to deter.
mine who is to be preferred, in which al
claimants may be heard, and there NAV he
an appeal to this court. But until such
proceeding is taken neither the court MOI
the Judge can interfere with the minis.
terial duty of the clerk.
In this case, therefore the order entered
{ was without force, and was no binding OBJ
: legation upon the clerk, and the threatened
action Of the court OF judge in countersign
ing the clerks check could avail nothing
either to injure the REALTORS or to protect
the clerk in case he paid to the wrong party
The question, if there is question, who i:
entitled to the fund, is still open, and sub
ject to the clerks decision, until some
proper judicial proceeding is taken to di
rect his action.
The petition is, therefore, denied.
We concur: Anders, g. j.; Dunbar, j.
Scott, J
concur III the result, and also in what
has been said, excepting that think thai
under the circumstances of this case it was
the duty Of the sheriff to pay the money
into the court to be distributed in propel
proceeding. HoYr, j.