Trippe, Judge.
1. The court held that it was necessary for the-plaintiff to introduce in evidence the affidavit and order of the judge enforcing the lien. ITe complied with the ruling of the court, and then complained that he-was compelled so to do. It could not have affected the case whether such papers were offered by the plaintiff or claimant, that is, because they were so offered by the one instead of the other, could not matter, so far as it concerned the final result. They were properly in, whether introduced by the one party or the other, and it would be a mere waste of time and costs to send the case back for the purpose of forcing the claimant to put them in proof, when the same result would be obliged to follow.
2. The proceedings to enforce the alleged lien were sued out before the act of 1870 was passed, and the fi. fa. was issued on the fiat of the judge, as by the statute was then required. Plaintiff, on the trial, amended both the fiat and the execution, by striking out from both a large amount of the debt claimed. The court held that by this amendment the levy, under section 3495 of the Code, must fall. We do not think that under the facts the court erred. That section provides in terms that if the fi. fct,. be levied at the time the amendment is made, “ the levy must fall, still the amended *59fi. fa. may be re-executed.” We see no way to except this fi. fa. from the operation of that section. As, however, only a portion of the property levied on was claimed, the order of dismissal should have been limited to that portion, and it was so directed in the. judgment we rendered to be sent back in the remittitur.
3. There was no necessity for either of the motions that were subsequently made by the plaintiffs. If they had obtained a new trial by judgment of the court which tried the case, or by writ of error to this court, the securities on the claimant’s bond would have still been bound by the final judgment, and the insolvency of the claimant was not a matter to affect the question. An insolvent claimant, if he has a good bond, is entitled to all the rights of a solvent one, and the motions, if they had been proper and had been granted, would not have furnished any additional security to what the plaintiffs already had, for the same sureties then on claimant’s bond would have been sufficient on any new bond.
Judgment affirmed, with directions.