The case was this: The plaintiffs below, Emil and Juan Bossut, attached a case of goods which were in the possession of the garnishee as a common carrier, and on which a bill of lading had been issued to- Isaac Levy, in New York City, the consignee being J. Gibbs, San Francisco, California, claiming that the goods were the property of Frank Pursch and Jacob Kaskel. Neither Levy nor Gibbs ever appeared in the suit, and the plaintiffs recovered judgment against said Pursch and Kaskel. The garnishee filed a motion to have the case of merchandise attached returned to it, but the motion was denied.
Both parties to this proceeding admit that the garnishee railroad company has a special interest in and a lien on the property attached for freight due it, consequently we need not discuss this proposition.
Defendants in error object to our considering this writ of error, on the ground that a writ of error lies only from “a final judgment or decision of any district court in any civil cause,” and that this being only a decision of a motion to return the property taken to the garnishee is not a final decision. It will appear from an examination of the record before us, that final judgment had been taken in the suit and that it was after such final judgment had been taken, that the motion for the return of the property was denied. A final judgment had been given in this case, and a writ of error will lie from it. The writ of error might have been sued out if the motion for the return of the property had never been filed.
garnishmeni: practice: appeal. Defendants in error further contend that the railroad company not having been a party by intervention or otherwise in the action below cannot prosecute this writ of eiror. A garnishee is a “party” to the proceedings between the creditor and . . t ° original defendant, although summoned mto the case and treated as a'witness; and he may take an appeal therein. Clarke v. Williams, 2 Humph. (Tenn.) 303; Kaylor v. Brunswick, 6 Heisk (Tenn.) 237.
The main contention of the garnishee is that the sheriff of Bernalillo county had no right to take from its possession under the writ of attachment property which was in its possession as a common carrier, and on which a bill of lading had been issued agreeing to deliver the property, to a third person, not a party to the suit.
The attorney for plaintiff in error cites a number of cases to the effect that property in the hands of a common carrier is not liable to garnishment when in transit. They do not, however, cite a single case which holds that such property is not liable to attachment. The difference between an attachment of personal property and a garnishment is very great. In the former the property attached is actually taken into the possession of the officer holding the writ and is under his custody and control, while in garnishment proceedings the property is left in the hands of the garnishee. In the case at bar the box of merchandise was attached by the officer, and removed by him.
Attachment: goods in transí-tu. In this Territory the right of an officer to attach goods in the hands of a common carrier is recognized, McVeagh v. A., T. & S. F. Ry. Co., 3, N. M. 327. The American and English Enel, of Law, page 8^4, says: “Goods in the custody of a rail- - , , \ road company within the state and county where the writ is issued at the time of the issuance of the writ would seem clearly to be subject to attachment,”'and numerous cases áre cited to sustain the proposition.
Common carrier:lien of. We cannot see that the plaintiff in error has any interest in the case of merchandise in question, save to get the freight due it for its carriage. If sued by the consignee for its non-delivery, the case of Stiles v. Davis & Barton, 1 Black. 101, and McVeagh and Co. v. A., T. & S. F. R’y Co., 3 N. M. 327; Am. & Eng. Encyl. of Law, page 854, and numerous cases there cited, are ample defenses for their not doing so.
If the goods were really the property of the consignee, J. Gibbs, he has a remedy, as he can bring an action against the officer who seized the goods, or against the plaintiffs in the attachment suit, if the seizure was made under their direction. The consignee knew that the goods were attached, as appears from his affidavit on file in this case, but so far as appears from the record he did not intervene in the attachment suit, never sought to replevy the property, and has not sued either the sheriff or the plaintiffs in the attachment suit for damages for wrongful conversion.
We can see no error in the judgment complained of, and the same is therefore affirmed.
McFie and Parker, JJ., concur; Crumpacker, J., having tried the case below, and Leland, J., did not participate in this decision.