(dissenting) — The premise on which the majority bases its decision is incorrect and leads it to the wrong result. Therefore, I dissent.
The majority's premise "is that the clerk held the funds in question in custodia legis." Majority opinion, at 904. However, the majority then fails to either (1) cite any case law or statutory law in support of its premise (perhaps because there is none), or (2) explain why its premise applies in the present case.
Custodia legis literally means '"[i]n custody or keeping of the law.'" (Footnote omitted.) 25 C.J.S. Custodia Legis 87 (1966). In general, property which is in custodia legis cannot be garnished. Russell & Co. v. Millett, 20 Wash. 212, 215, 55 P. 44 (1898); 6 Am. Jur. 2d Attachment and Garnishment § 202 (1963). Furthermore, the purpose behind the doctrine is to "preserve the jurisdiction of the court administering the property and prevent conflicts of jurisdiction with other courts." (Italics mine.) Hardy v. Construction Sys., 556 S.W.2d 843, 844 (Tex. Civ. App. 1977); see Gibbons v. Ellis, 63 Colo. 76, 165 P. 783 (1917); 25 C.J.S. at 87.
In the present case, no jurisdictional conflict exists with other courts. The court that issued the writ of garnishment also held the funds received pursuant to the Machart and Bales judgment. Since there are no competing jurisdictions, there is no reason to apply the doctrine of custodia legis. Therefore, I would hold that the funds are subject to garnishment.
The majority claims that to hold such funds subject to garnishment "overly burdens clerks and interferes unnecessarily with the court's jurisdiction." Majority opinion, at *907905.1 disagrée; instead I agree with the Hardy court which, at pages 844-45, stated:
We are aware that permitting garnishment actions against the clerk of a court subjects [the clerk] to a certain amount of inconvenience and risk. It is, however, no greater than that encountered by any garnishee, and we see no reason why a clerk should be given a preferred position, or debtors' funds find sanctuary in [the clerk's] possession.
It may be an annoyance to clerks that such funds are subject to garnishment where there is no jurisdictional conflict, but it certainly does not overly burden them.
The majority, without any case law precedent or analysis, adopts a doctrine when it is not necessary. Therefore, I dissent, and I would hold that the funds in the current case were subject to garnishment because there were no conflicts concerning the funds with any other jurisdiction.
Dore, J., concurs with Goodloe, J.