S. Blum & Co. v. Hurley , 1 Gunby 86 ( 1885 )

Gunby, J.

Where property, on which plaintiffs claim a privilege, has been seized and advertised for sale under a fi.fa. issued from a magistrate’s court, and plaintiff’s claim exceeds the jurisdiction of the magistrate, they cannot obtain an order from him directing the sheriff to retain the proceeds in his hands ; neither can they obtain such order, by way of third opposition, from the District Judge. Third opposition is a peculiarly favorable remedy to privileged creditors, but it must be filed by motion in the court from which the writ issued. C. P. 401. Where this cannot be done, the creditor must obtain an injunction from a competent court, under bond and oath, not to stop the sale, but restraining the sheriff from paying over the proceeds of the property to the seizing creditor. C. P. 300.