The point presented by the demurrer to the plea, as mentioned in the opinion, was that the dissolution of the attachment in the action by Tilghman against Melton did not discharge the forthcoming bond and release the surety.
This court did not hold that the order of the trial court dissolving and discharging the attachment in the Tilghman-Melton case was erroneous, but that its effect was not to release the surety upon the forthcoming bond. The petitioner is in error in stating that this Court reviewed the trial court's order in the first case. It merely held in accordance with the point presented by the demurrer that the order's effect was not to release the surety on the forthcoming bond. The distinction between declaring an order to be erroneous and declaring that it does not have a certain effect is apparent.
It is quite true that both Tilghman and Melton are bound by the orders and judgments made and entered in the first case; but to put an interpretation upon one or the other which it will not bear and ascribe to it an effect which it does not have and say such is the order is another proposition altogether.
What we held in the opinion was that the order dissolving and dismissing the attachment did not discharge the surety upon the bond.
The pleas were not set out in full in the opinion; nor, indeed, was it necessary. It may be just as well, however, to mention the fact that the pleas averred that the order was entered upon the 27th day of April, 1915, which was the same day upon which the judgment was rendered against Melton in favor of Tilghman declaring a lien in the *Page 295 latter's favor upon the property described in the forthcoming bond.
The property was a quantity of sawn lumber. The perfected lien was declared to exist upon that particular quantity of lumber. The attachment was issued to hold the property within the jurisdiction of the court to the end that the property might be subjected to the enforcement of the lien for which the action had been commenced. The attachment was merely an order in the nature of a writ in chancery requiring the property to be held within the jurisdiction of the court that it might be subjected to the lien.
To construe the order to mean that it was the judge's purpose to release the property, permit it to be taken out of the court's jurisdiction, and then by judgment at the same time declare a lien upon it and order it sold to satisfy such lien, would be to hold that there was trifling with the court's process and by a kind of sophistry defeat the rights of the lienor, the successful litigant, and frustrate the object of the statute under which the lien was acquired and enforced.
The difficulty which the petitioner has seems to grow out of the assumption referred to in the opinion that to release the attachment was to release the sureties upon the forthcoming bond. It being assumed that the phrase in the statute, Section 3417, Revised General Statutes, prescribing the bond's condition, "to abide the final order of the court," means the order in the so-called attachment proceedings; which has been held to be the meaning in cases of ordinary ancillary attachments in proceedings at law, but this was not such an attachment.
The bond given in this case, while in the form of the statute, was merely a common law bond in effect. The "final order of the court" could have no reference to any order except the final order in the statutory proceeding for *Page 296 the enforcement of the perfected lien. This is necessarily true because, as pointed out in the opinion, the attachment writ is a statutory chancery writ under the control of the court foreclosing the mortgage and subject only to the rules of chancery practice.
The giving of the bond, itself, operated to release the property as held by the sheriff; the order was merely declaratory of that effect. The bond became substituted for the property upon which a lien existed, not by virtue of the attachment but by virtue of the statute creating a lien in favor of laborers under the conditions with which the plaintiff had complied.
This is the meaning of the opinion and decision in the case of Weston v. Jones, 41 Fla. 188, 25 South. Rep. 888, as applied to attachments in foreclosure proceedings.
Now, the opinion in this case pointed out that under the provisions of Section 2212, General Statutes, which is 3519, Revised General Statutes, four methods are provided by which all statutory liens are enforceable and Section 2214, Revised Statutes, which is 3521, Revised General Statutes, provides that any person entitled to a lien upon personal property may "enjoin the removal of the same, in the manner provided for enjoining the removal of property subject to a mortgage or, if the lien shall have been perfected, may attach the same in the manner provided for attachment in aid of foreclosure of mortgages."
The liens were enforceable in any of the four methods provided by Section 3519, supra; but Section 3521, supra, gave to any person holding a lien under the statute the additionalremedy by which the property might be held within the jurisdiction of the court to abide its final order and if it should be a perfected lien the method or manner should be the same as that "provided for attachment in aid *Page 297 of foreclosure of mortgages" which, in the Weston case,supra, the court said was a "statutory chancery writ."
We said in the first opinion that it was not contended that the Legislature has no power thus to secure to a lien holder of a perfected lien the same advantage in law as he would have in equity in the enforcement of the lien. Petition for rehearing is hereby denied.
WEST, C. J., AND BROWN, J., concur.