the opinion of the Court was filed by
Paxson, J.:This is a question of costs. We have no less than four decrees of the court below, from the last of which this appeal was taken.
The first decree was made January 24, 1881, and was a final decree in the cause. While it is not clearly expressed, it is yet evident that the plaintiffs’ bill was dismissed, the injunction dissolved, and the costs of the suit in equity, “ excepting the costs incurred before the master by the taking of testimony in behalf of the defendants,” were imposed upon the plaintiff. That portion of the decree regarding the costs is obscure, but we think the meaning of the decree is to put the costs as above stated upon the plaintiff. It provides for collecting them out of his property, and although the decree could not be enforced as made ; that is to say, the costs in the suit in equity could not be taxed and collected in another and independent suit upon the mortgage, yet we are of opinion the liability of the plaintiff for the, costs was fixed by this decree, and, as there was no appeal therefrom, we are unable to see how it could afterwards be changed without the consent of the parties.
Next came the decree of July 2, 1881, which provided merely for the payment of the master’s fee of fifty dollars. Ten dollars thereof was ordered to be paid by Joseph Nesbit, one of the defendants, and the remaining forty dollars by the plaintiffs. This was in entire harmony with the decree of January 24, and was evidently in aid thereof.
*181Then we have the decree of July 9, 1881, which is called the “final decree as to costs.” It provides that “the order of the court of July 2, 1881, is so far modified as to release the plaintiffs from paying any portion of the costs in this case, and it is hereby ordered that the sheriff pay T. C. Hippie, out of the sale of the real estate, forty dollars, and also to pay the balance of the costs in this case.”
It was urged that this order was intendea and treated as a rule upon the sheriff to show cause why the costs .in the equity suit should not be paid out of the funds in his hands produced by the sale of the plaintiffs’ real estate. There is some ground for this contention. The sheriff filed an answer, in which he set forth that he had no funds in his hands applicable to the costs ; that the mortgaged premises sold for less than the mortgage debt, and that he had taken the receipt of the mortgage creditor for the amount of the bid, less the costs of the sale.
Thus the matter stood until October 13, 1883, when the Court, treating the order of July 9, 1881, as a rule upon the sheriff, discharged said rule, directed the sheriff to deliver to Joseph Nesbit the sheriff’s deed for the property sold upon his receipting for $1,799 07, the proceeds of the sale belonging to him as a lien creditor, and that the plaintiffs pay the sum of forty dollars to the master as their proportion of the costs; that they pay all the other costs in the case, and that in default of such payment an attachment shall issue against said plaintiff to enforce payment of the sum.
It is obvious that this decree is in entire harmony with the final decree of the Court, made January 24, 1881, and, so far as it seeks the enforcement of that decree, is unobjectionable. Is the decree of July 9, 1881, in the way? IVe think not. We might well treat that order as the court below regarded it, as a mere rule upon the sheriff. As a final decree as to costs, it is insensible. It appears to release the plaintiffs from paying any portion of the costs, and yet it orders the costs to be paid out of the proceeds of the sale of the plaintiffs’ real estate. This order, as well as the final decree of January 24, 1881, was evidently made by the Court under the belief that the sale of the mortgaged premises of the plaintiffs would produce sufficient funds to pay the debt, interest, and costs upon that writ, the costs of the sheriff’s sale, and the costs in the equity suit. This, as we have said, was a mistake. As before observed, the costs in the equity suit could not be taxed in that case, and there was no *182fund to pay them. Upon whom, then, must the costs fall? Clearly upon the plaintiffs, whose bill was dismissed, and who were fixed for the costs by the decree of January 24, 1881.
Further, if we treat the order of July 9 as a decree as to costs, it will not avail, as it conflicts with the final decree of January 24. That decree was not appealed from. The order of July 2 was in the nature of execution process to enforce the decree of January 24. It does not purport to alter or amend it. That was a final and definitive decree, unreversed and unappealed. That portion of the order of July 9 which says: “The order of the court of July 2, 1881, is so far modified as to release the plaintiffs from paying any portion of the costs in the case.” was evidently inadvertently made by the court below upon the suggestion of counsel, without having the record of the case before it. It was so stated by the learned judge below in his opinion.
Objection was made to' that portion of the decree of October 13, 1883, which orders an attachment to go out, upon failure of the plaintiffs to pay the costs. As no attachment has in fact been issued; no harm has been done. It is proper to say, however, that an attachment will not lie for costs : Pierce v. Scott, Legal Int., Vol. 40, p. 320.
The decree is affirmed and the appeal dismissed at the costs of the appellants.