Weaver v. Wood

By the Court, Niles, J.:

The plaintiff, by the levy of the attachment from the Fifteenth District Court, acquired a lien upon the attached property for the payment of any judgment which he might ultimately recover against Hayward. This lien was lost to him by the payment by the sheriff into the Fourth District Court of the entire proceeds of the sale of the property. There can be no question that the defendant is liable to the plaintiff for this loss, unless he was protected by the' order of the Fourth District Court, made in the action of Harris v. Hayward.

Undoubtedly that Court had the power to order the attached property to be sold in the interest of all parties, and in accordance with the provisions of Section 654 of the Practice Act. But it was clearly beyond its power to interfere with the lien of the prior attachment issued from the Fifteenth District Court, or to dispose of any portion of the fund arising from the sale other than the surplus that might remain after the satisfaction of .the appellant’s claim. The sheriff, having both attachments in his hands, knew the extent of the demand of the first attaching creditor, and must be held to have known that the Fourth District Court could only deal with the excess of the proceeds of the sale over that demand..

It follows that the plaintiff is entitled to a judgment upon the findings. Since the amount of the plaintiff’s judgment against Hayward exceeded the net proceeds of the sale of the attached property, paid by the sheriff into the Fourth District- Court, the judgment should be for an amount' equal to such net proceeds, with legal interest from the 9th day of April, 1872; that being the admitted date of the return of the execution in the case of Weaver v. Hayward, and the day from which interest is claimed in the complaint.

Judgment reversed and cause remanded, with directions to enter judgment for the appellant in accordance with the foregoing opinion.

Mr. Justice Crockett, being disqualified, took no part in this decision.