Cunningham & Son v. Ihmsen

The opinion of the court was delivered, January 3d 1870, by

Thompson, C. J. —

We must regard this as an issue ordered by the court to inform its conscience about some matter of distribution arising between the parties. But the records show that when the money was made, it belonged incontestably to the defendant, as between him and the plaintiffs; they had not even a judgment until after the levy and sale on his execution. It seems to us a novelty to grant an issue to try the validity of that judgment. The judgment was claiming nothing, it was the execution, and it had no competitor. There is a want of regularity and order about the whole proceeding which does not entitle the exception to much attention here. We shall therefore dismiss the case with this remark upon the assignments of error, that none of them are sustained. If Arbogast chose to redeliver his bond and warrant of attorney to Ihmsen to be entered up or otherwise as he chose, the transaction being sound between them, no stranger could assail it on this ground. In so holding, the court committed no error.

Judgment affirmed.