Dissehtihg. — This is a suit against the sheriff of Harrison county and his sureties, upon his official bond, for the recovery of damages on account of the alleged wrongful levy of a writ of attachment upon the goods of the relator. Defendant, Barker, by his separate answer, among other things, stated, “that his term of office, as such sheriff, expired on the seventeenth day of November,- 1882, and that, on said seventeenth day of November, 1882, he surrendered to Miles S. Grillidett, his successor in office, who was then .the duly elected and qualified sheriff of Harrison county, Missouri, all books, papers and property then in his possession as such sheriff. Wherefore defendant, having fully answered, asks to be. discharged with costs of .suit.” The other defendants, sureties upon the sheriff’s bond, also file their separate answer, which is substantially the same as that of the principal. The trial before the court, sitting as a jury, having resulted in a finding and judgment for relator, the defendant appeals.
The attachment writ was sued out in case of B. F. Hamilton et al. v. Thomas J. Hulen. The relator filed his interplea for the goods, and, on a trial thereof, recovered them, or rather the money for which they had been sold under an order of court.
In this case the record of the judgment on the interplea, together with the original papers, was received in evidence over defendant’s objections. De*496fendant offered to prove that when the deputy sheriff went to make the levy he demanded the keys of relator, and that relator replied he did not have them, that he did not own the goods, that John H. Reeres was the owner and had the keys. Defendant further offered to prove that when the goods, were levied upon relator had no interest in them. These offers of testimony were-rejected by the court “upon the ground that the finding and judgment upon the interplea was conclusive upon defendant and his sureties.”
The opinion in this case is so foreign to what I conceive ought to be said, and reaches a conclusion, as I think, so unjust to an innocent party, that I state my dissent. After all is said in the opinion of the court, and after all that can be said in its support, the fact remains, that a. party is held concluded and bound by a proceeding with which he had nothing to do, in fact, and with which he could have had nothing to do, had he desired it ever so anxiously. The fact remains, that a man bound and shackled, unable to raise his hand or voice, in a proceeding with which he has no connection, directly or indirectly, is held to be concluded by the-result therein. He took no part in it. He was not asked to participate in it, and would not have been permitted to do so had he so requested. That he would abide the judgment therein as to the disposition of the property is true. But he would do this on an order of the court that he turn it over to the interpleader. So he obeys any order of court. He has the custody of a criminal and disposes of him as the court may order. He sometimes hangs him, but he would little dream that he was liable to be hung himself, under the same judgment.
It was not his right to make defence, examine witnesses, or appeal from the judgment. “It is a most obvious principle of justice, that no man ought to be bound by a proceeding to which he was a stranger. Parties bound by a judgment include all who are directly inter*497ested in the subject matter, and had a right to make de-fence, or to control the proceedings, and to appeal from the judgment. This right involves, also, the right to adduce testimony, and to cross-examine witnesses on the other side. Persons not haring these rights are regarded as strangers to the cause.” McDonald v. Matney, 82 Mo. 358, 363. This is the rule recognized and asserted by G-reenleaf’s Evidence, sections 352, 523. The usual statement is, that parties and privies are bound by the judgment. Privies by the common law are classified as ‘ ‘ Privies in law, as lords by escheat, tenant by cur-tesy, tenant in dower, executor, or administrator, the incumbent of a benefice, and all others that come in by the act of the law, privies in blood, as heirs and co-par-ceners, privies in estate, as where there is a mutual or successive relationship to rights of property not occasioned by dissent or act of law.” Freeman on Judgments, sect. 162. It is evident that the sheriff occupied neither of these relations to the interpleader in this case. He was not a privy in law, for there was no duty, by operation of law, connecting him with the case, nor does the law throw upon the office of sheriff the duty to attend to such .cases, nor cast upon the office the burden of adverse results in such actions.
That he was not a privy in blood is self-evident. Neither was he a privy in estate, for he has succeeded to no property, estate, or interest therein. Moreover, “it is well understood * * * that no one is privy to a judgment, whose succession to the rights of property thereby affected occurred previously to the institution of the suit.” Freeman on Judgments, sect. 162. Thus, “the assignee of a note is not affected by any litigation in reference to it, beginning after the assignment. No grantee can be bound by any judgment in .an action commenced against his grantor subsequent to the grant.” Freeman on Judgments, sect. 162.
Whatever right the sheriff had in these goods was *498■obtained previous to the institution of tlie interplea, and' under the above rule, cannot be affected by such suit.
But it is said that ‘: neither the benefit of judgments on the one side, nor the obligations on the other, are limited exclusively to parties and their privies.” Freeman on Judgments, sect. 174. And if the judgment under discussion is rto conclude the defendant in this cause, it must- be under this rule. Such cases are where a suit is prosecuted, or defended, in the name of another person, as in the case of “trustee and cestui que trust, the real party cannot escape the result of a suit con-'' ducted by him in the name of another.” Freeman on Judgments, sect. 174. But,. in this class of cases, the real party in interest would be considered a “party” to the action, under the authorities on that head cited1 above. My conclusion is, as before stated, that the' sheriff had no right to demand permission to take part in the interplea trial. If he had offered to interferéin that trial, he would undoubtedly have been turned away, on the ground that it was no concern of his.
But if we concede, for argument’s sake, that he had' the right, it should be shown that he had the opportunity to exercise it, by having notice of the ■ existence of the interplea suit. Elis term of office may have expired before the interplea was filed. Such, indeed, was the fact in this case, and it is so pleaded. In the case of Stewart v. Thomas (45 Mo. 42), it was held that, where judgment is rendered against a sheriff on his bond, for an unlawful levy, and he afterwards sued plaintiff in the execution on his bond of indemnity, the latter may make any defence which could have been made in the' original suit against the sheriff. That, in the absence of notice, with opportunity of making defence, such judgment was merely prima facie, and not conclusive. In order to make the judgment conclusive against the sheriff, conceding he was a party in interest, he must have-had not only a right, but have had, also, an opportunity to make defence, or control the proceedings. Strong v. Ins. Co., 62 Mo. 289, 295.
*499It is no answer to the view I have taken, to say that the goods were in the hands of the sheriff during- the pendency of the interplea. They are in his hands for Safe keeping, but, in theory of law, they are in custodia legis, and are at the disposal of the court. However that may be, in this case the sheriff went out of office before the filing, or the trial of the interplea, and had turned over the property to his successor; there was, therefore, not even this excuse to hold him, concluded by the proceedings.
The result arrived at in the case of Stevens v. Springer (23 Mo. App. 375), is not in conflict with the views here expressed." I consider the sections of the statute cited in that case as controlling it. The claimant in that case, having made the statutory claim of the property levied on, the sheriff demanded and received of the plaintiff in the execution and indemnifying bond, conditioned to hold him harmless by reason of the levy; conditioned, in effect, to reimburse him if the property seized should turn out to be a third party’s, to whom he should become liable. The sheriff approved that bond ■and returned it, with the claim, into court; upon which claim a trial was had, as provided by section 2367, Revised Statutes. The whole proceeding is statutory, the bond standing as a full indemnity and reimbursement to the sheriff for any loss occasioned to him by reason of Ms official action, He being only required when sued by the successful claimant to notify his indemnitors, and offer them opportunity to defend the suit, as was the ruling in Stewart v. Thomas {supra).
The fact that my associates, who are so well quali-' fled to adjudge the right, differ from me, would, ordinarily, shake my confidence somewhat in my own views, but, in a case like this, where an innocent party is deprived of his ordinary legal rights by reason of a proceeding with which he had nothing to do, and over which he was powerless to exercise any control, I deem it proper to protest.