Wynne v. Millers & Sibley

Jackson, Justice.

This case arose upon a money rule against the sheriff brought by Millers & Sibley. The answer of the sheriff showed that he had in hand nine hundred dollars raised from the sale of the goods of O. N.. Wynne & Go., and that a mortgage y?, fa. of Hannah Haines, and an attachment of said Millers & Sibley, claimed the fund. O. N. Wynne individually was made a party to the rule, and made the issue by pleading that Millers & Sibley had no valid lien, in the words following : “ And now comes O. N. Wynne and joins issue with plaintiffs in said rule, and says that said plaintiffs have no valid lien against the said C. N. Wynne & Go., they never having in any way sued said firm, dr the members composing the same; nor have they been served with the process of any court.”

This plea of Wynne was stricken, and he excepted. It strikes us that there is substance in this plea. It is not very fully set-out in detail, but it puts in issue the validity of the .lien which was claiming the money — it denies that the firm, or any member, was ever served with process or sued at all in any way. If that be true, certainly Millers & Sibley had no right to the money ; and if it be defectively set out it might be amended.

The question, then, is, did Wynne individually have the right to make the issue ? He is a member of the firm of the defendants whose goods were sold, and has an interest, and deep interest, in seeing to it that the money of the firm was not paid to a something that was no lien, and had never been sued.

We think he had the right to be heard, and to show that Millers & Sibley had no lien. The judgment is, therefore, reversed on the ground that the court, on demurrer, struck the issue.tendered,., or plea made, by C. N. Wynne.

Judgment reversed.