ON MOTION I'OR REHEARING.
HENRY, Associate Justice.The record in this cause contains a statement of facts in which the appeal bond which is the foundation of the suit and the judgment of the District Court of Marion County in the case of Samuel Thurman v. Blankenship & Blake Company for the trial of the right of property are both copied at large. Said judgment is so copied at two places in the record—once as offered by the plaintiff and once by the defendant. „ .
Upon motion of the attorney for appellee we struck both the bond and *178the judgment from the statement of facts, upon the ground that they were not contained in the statement of facts when it was approved by the district judge, but were subsequently inserted in blanks left for that purpose, in violation of a rule of this court. Rule 72a.
A copy of the bond sued upon was, however, attached as an exhibit to the plaintiffs petition,,and the statement of facts contains a recital that the “plaintiff read the appeal bond sued on.” That recital was treated by us as sufficient to make the bond a part of the statement of facts.
In the motion for rehearing the appellant contends that only the copy of the judgment that was introduced in evidence by the defendant was stricken from the record, while the one introduced by the plaintiff remained.
It was improper1 for the same judgment to be twice copied into the statement of facts.
In support of the present motion our attention is called to the language of the motion to strike out, which describes the judgment in the following words only:
“Judgment of S. Thurman v. Blankenship & Blake Company (claim case). Tr., 37-40.” The reference to the pages of the transcript relates to the copy of the judgment introduced in evidence by the defendants.
The certificate of the clerk, showing how the statement of facts was made up, describes the judgment in exactly the same language that the motion does, but omits any reference to the pages of the record.
The motion only served to call our attention to the matter. It was the certificate of the clerk and the separate affidavit of the attorney who made the motion that we acted upon, and neither of them referred any more to one entry of the judgment than to the other. We think that they included the judgment wherever it was found in the statement of facts.
When it comes to oar knowledge that the rule on the subject has been, violated we will strike matter so inserted from the statement of facts without a motion.
Appellant contends, however, that the appeal bond contains a recital of the judgment in question, and that it was sufficiently in evidence in that manner. In fact the appeal bond does contain an accurate statement of the substance of the judgment as far as it goes, without being quite complete. We think that the deficiency in the recitals of the appeal bond in this particular is sufficiently supplied by other parts of the statement of facts, as it remained after the insertions had been stricken out, to bring before us the iudgment that we declined to consider in our opinion, and to make it our duty to consider the appeal upon the facts.
The value of the property in controversy in the three attachment suits was found by the court to be $478:09, and a judgment was rendered in favor of Thurman in the District Court for that sum, with interest and *17910 per cent damages, to be paid only after the judgments in favor of Bemis and Sedberry were paid out of the same and other attached property.
The judgment in favor of Bemis Avas rendered for the sum of $6732, besides interest and costs, and the one in favor of Sedberry was for $229.50, besides costs.
The net proceeds of the sales of all the attached property (not including that involved in the trial of the right of property cases) was $5111.05. If to that sum the amount of the judgment against the Blankenship & Blake company is added, we have the gross sum of $5589.14, a sum less than the principal of t,he Bemis judgment, to say nothing of interest and costs, or of the Sedberry judgment.
J. H. Bemis purchased the attached property at the sheriff’s sale, as Ave have said, for an amount less than his debt. Subsequently the Blankenship & Blake Company paid to Bemis the full amount of his judgment, and Bemis conveyed to Blankenship & Blake Company the property purchased by him at the sheriff’s sale.
When the attached property Avas sold by the sheriff the money bid for it took the place of the property in the attachment suits, and no subsequent dealing with the property between any of the parties could deprive the Blankenship & Blake Company of its right to be relieved by paying the full anfonnt which it Avas ordered to pay to the judgment creditor Avho had the superior right to it. When the other attached property fell short of paying the Bemis judgment by more than the amount of the Blankenship & Blake judgment, no choice Avas left for it but to pay the amount for Avhich it Avas liable to Bemis.
We do not find in the statement "of fact's any evidence"of the judgment of this court in the case in which the appeal bond was given. The motion for a rehearing must be overruled.
Motion for rehearing refused.
Delivered December 19, 1890.