William E. Bird & Co. v. Taylor , 43 Vt. 584 ( 1871 )

The opinion of the court was delivered by

Steele, J.

The fact that the first, Kellogg’s, attachment was on a justice writ does not, we think, exclude the second attaching creditors, Bird & Co., from participating pro rata in the proceeds of the attachment as provided by the first section of No. 1 of the acts of 1867. See §§ 16 and 6.

The attaching creditors subsequent to Bird & Co. did not proceed regularly, and it is not pretended that they are entitled to participate.

It appears that Bird & Go. complied with all the requirements of the law. They are therefore entitled to recover their share of the funds.

But they claimed the whole, on the ground that the first attaching creditor, Kellogg, did not file with the county clerk a copy of his justice judgment as required by § 6. Kellogg was never, we think, brought under the operation of § 6, because no claim to participate was filed by Bird & Co. until it was too late for Kellogg to obey the requirements of that section, and until such a claim was filed, there was no occasion to obey them.

The result is, that the first attaching creditor, Kellogg, and the second, Bird & Co., are entitled to receive of the Sheriff the avails of the trustee attachment in proportion to the amount of their respective judgments.

The judgment of the county court is reversed and judgment is rendered for the plaintiffs to recover their pro rata share of said trustee funds, to be assessed by the clerk on the above basis.