State v. Booker ( 1883 )

Cooper, J.,

delivered the opinion of the court.

Where an execution issues from this court and is levied upon personal property, it is not admissible for a third person, claiming such property, to interpose a claimant’s issue thereto, but he should sue out his writ of replevin against the officer, who has the property in his possession.

This court has no power to try any issue of fact not necessary to be decided for the disposition of an appeal pending here. Code 1880, § 1412. Section 2633 of the Code, prohibiting actions of replevin in certain cases, is not applicable to cases in which property has been levied on by virtue of the process of this court, because no remedy is given to the claimant to interpose his claim by the statute; and he may therefore resort to an action of replevin. An alias writ oí fieri facias should be issued.

Ordered accordingly.