The opinion of the court was delivered, by
"Williams, J.It is conceded that if the judgment confessed by the appellant is not subject to the attachment executions previously served on him as garnishee of the plaintiffs, then the court was right in sustaining the exceptions to the auditor’s report, and decreeing the fund to the plaintiffs’ assignees. There is nothing on the record to indicate that the judgment was confessed subject to the attachments. They were not pleaded, nor otherwise brought to the notice of the court. The amount for which the judgment was confessed and accepted, was the result of compromise, as is apparent from the record, and as the evidence *346shows. The case had been previously tried before a jury, and the judgment reversed; and just as it was about to be called for a second trial the judgment was confessed for a sum less than that demanded by the plaintiffs, but exceeding the amount for which the appellant had tendered judgment. It does not appear that anything was said in relation to the attachments at the time the judgment was confessed, though they had been previously spoken of by the parties; nor is there any evidence showing the basis on which the compromise or settlement was made. But'the next day after the judgment was entered the appellant obtained a rule on the plaintiffs to show cause why the judgment confessed and accepted in this case should not be marked subject to the execution attachments served heretofore on the defendant as garnishee of the plaintiffs, and in the meantime all proceedings stayed, &c. After the lapse of more than three months the court discharged the rule. This, as it seems to me, was in effect deciding that the judgment was not confessed and accepted with the understanding that it was to be subject to the attachments, or to a credit for the amount of the judgment rendered therein against the appellant as garnishee; and if so, why should he not be bound by the adjudication ? But if it cannot be regarded as conclusive, it is at least primá facie or presumptive evidence that the judgment wa,s not confessed subject to the attachments; and as there is nothing to rebut it, it must be accepted as conclusive. It does not follow that the judgment is subject to the attachments because they were served on the appellant prior to its confession. His liability for the amount of the attachments had then been fixed by the judgment rendered against him therein; and he may have taken them into account in confessing the judgment. If he did, it is clear that he is not entitled to have any portion of the money which he paid into court, in discharge of the judgment, applied to the satisfaction of the judgments in the attachments. The finding of the court below, in whose presence the judgment was given, that it was not confessed with the understanding that it was to be subject to the attachments, is entitled to great weight, and ought not to be reversed or set aside without some evidence tending to show that it was a mistake. This is not a controversy between the plaintiffs attaching creditors and assignees. The attaching creditors are not seeking to have the fund applied to the satisfaction of their judgments against the appellant as garnishee of the plaintiffs. They did not appear before the auditor, and they are in no sense parties to this proceeding. The appellant is the only party claiming to have the attachments satisfied out of the money in court, and it is clear that he has no right or equity to have the fund so applied if the judgment, as confessed, is not subject to the attachments. It may be that the appellant confessed the judgment under the impression and belief that it would be subject *347to the attachments, but how can we say that this was the understanding of the plaintiffs’ assignees, in face of the presumption arising from the record, and the other evidence in the case ? If the assignees, as alleged, would not have accepted judgment, subject to the attachments, for the amount for which it was confessed, it would be doing them injustice to apply the fund to the satisfaction of the attachments.
For these reasons the decree of the District Court must be allowed to stand.
Decree affirmed at the costs of the appellant.