The opinion of the Court was delivered by
Willard, A. J.The order appealed from is, in substance and effect, a final order, adjudging the Sheriff in contempt for disobedience of an order made by the Court relative to the due execution of final process, in the action above entitled.
The order in respect to which disobedience is alleged is dated May 17, 1871, and is as follows: “The Sheriff having been served with a rule to show cause why he has failed to make the money in the above stated case, and it appearing by his return to said rule that he had levied, during the month of June, 1870, upon certain goods and merchandise of the defendant, and having returned the original execution to the Clerk, according to law, without having sold the goods levied on, and a new execution having been lodged in his office April, 1871, it is ordered that the Sheriff proceed, without delay, to sell property levied upon, and to pay out the proceeds of sale in satisfaction of said execution.”
The disobedience alleged consisted in the failure of the Sheriff to seize and sell certain goods, as the property of the execution debtor, that wore held, or had been disposed of, by a third person, not a party to the suit, named Renneker, claiming title to the same as his own property.
The order adjudging the Sheriff in contempt, in effect, decides that it was the duty of the Sheriff, under the order above recited, to seize the goods in question in the hands of Renneker, and against his will and claim of ownership, and without being indemnified for so doing by the plaintiff in the execution, or to make good the value of such goods in the event that they could not be found.
This view of the duty of the Sheriff is urged upon two grounds: first, by the fact that these goods had, previously to their coming into the hands of Renneker, been levied upon by the Sheriff in the hands of the execution debtor as his property, and that, subsequently *33to such levy, they had been improperly transferred to Renneker by the execution debtor in fraud of the levy; and, second, that such seizure was imperatively commanded by the order of May 17.
The facts, as alleged by the affidavit of the Sheriff, and not contradicted, are, that the goods in question were levied upon under an execution issued on the judgment, in question in May, 1870; that, shortly after the levy, an arrangement was made between the attorney for the plaintiff in the execution and the defendant, by which the defendant was to pay a certain amount on account of the debt, and in consideration of such payment, “ the defendant should keep and sell the said goods himself, and out of the proceeds thereof to pay and satisfy the balance due on the said judgment.” The Sheriff alleges that this arrangement was carried into effect, and that, in accordance with such agreement, “ the attorney for the plaintiff then and there consented to leave, and did leave, the aforesaid goods, so levied on as aforesaid, in the possession and keeping of the said defendant, to sell and dispose of the same, from time to time, for the purposes aforesaid ;” that, subsequently to the arrangement, the Sheriff returned the execution under which such levy had been made. A subsequent execution was lodged in the Sheriff’s office in April, 1871. The Sheriff further alleges “ that under this execution, and under others subsequently issued, he had made diligent search' for the property of the defendant and for the goods aforesaid, and has been unable to find any, and has so returned the executions to the office of the Clerk of the Court.”
The statement of the Sheriff being uneontradicted, it must be taken as a fact that he was unable to comply with the order of May 17th, assuming that, by the proper construction of that order, he was bound to seize and sell the goods delivered by the execution debtor to Renneker, inasmuch as, after due search, such goods could not be found after the delivery to the Sheriff of the execution of April, 1871.
Under these circumstances, in order to bring the Sheriff into contempt, it must be made to appear that such inability was the consequence of some wrongful act or default on the part of the Sheriff, amounting to a dereliction of his duty under the process of the Court. No such dereliction of duty is disclosed by the case, as it stands before us, either in the proceedings of the Sheriff prior to the first execution, in the fact of returning that execution unsatis*34lied, or in the proceedings subsequent to the return of such execution and prior to the issuing of the second execution.
The Sheriff was justified in leaving the property in the hands of the execution debtor under the arrangement made between the parties. If that arrangement was regarded by the parties as beneficial to themselves, the Sheriff was under no obligation to interfere with it, although he would have been justified in securing provision for the payment of his fees. There is nothing tending to show that the goods in question were removed out of the possession of the execution debtor prior to the return of the first execution. The affidavit of Cook and Browning would appear to fix the time of the transfer of the goods to Renneker.in October, 1870, while the statement of the Sheriff would make it appear .that the return of that execution was made as early as July or August of that year.
It thus appears that the property in question remained in the same position in which it was placed under the arrangement between the plaintiff’s attorney and the execution debtor until after the return of the first execution under which the levy had been made. Accordingly no dereliction of duty can be ascribed to the Sheriff down to the time of returning the first execution. Nor was the return of the first execution unsatisfied a dereliction of which the plaintiff is entitled to complain, as the cause of the inability of the Sheriff to find and sell the goods under the second execution. If the plaintiff regarded the return of that execution unsatisfied as injurious to his right, his proper course was to proceed against the Sheriff as for a false return. Instead of so doing, he recognized and acted upon the fact of a return, by issuing a new execution, and obtained the order of May 17th in aid of such second execution. The order of May 17th cannot be regarded as, in effect, ascertaining that the return to the first execution was false, its whole import and bearing having regard to the new execution. It is, therefore, not within the power of the plaintiff to bring forward any supposed delinquency in returning the first execution as ground for charging the Sheriff with failure to perform the duties imposed by the second execution and the order of May 17th.
Nor can the facts brought to notice as occurring subsequent 1o the return of the first execution, and prior to the issuing of the second execution, warrant the conclusion that the Sheriff was guilty of any official dereliction, to which his inability to execute the second execution, as against the property in question, can be ascribed. It *35appears that after the return of the first execution the Sheriff obtained information that the goods in question were in the possession of Renneker. He thereupon demanded them of Renneker, who refused to surrender them, claiming them as purchased from the execution debtor. Renneker tendered his bond of indemnity to the Sheriff. The Sheriff then informed the plaintiff’s attorney of the facts, and demanded a bond of indemnity from the plaintiff, which was refused.
At the time embraced in the foregoing statement of facts, the Sheriff had no execution against the property, the first having been returned, and the second not yet issued, and accordingly he was not in a position to interfere with the possession of Renneker.
But had he held an execution, the refusal of the plaintiff to furnish a bond of indemnity would have justified a refusal on the part of the Sheriff to take the goods out of Renneker’s hands.
The Sheriff is not bound to seize goods claimed as the property of the judgment debtor in the hands of third persons making claim to the same. The practice at common law of calling a Sheriff’s jury not prevailing in this State, he has an absolute right to demand indemnity in such cases.'
The fact that the Sheriff had once levied upon the goods did not authorize him to interfere with them in the hands of Renneker. The latter claimed title under a sale made by the execution debtor, under the authority of the arrangement allowing the execution debtor to make sales. By this arrangement the plaintiff and the Sheriff were both bound, the latter having assented to it, and the right of the Sheriff, under the levy, became so far qualified as to become subject to title made under sales made by the execution debtor. Renneker, not being a party to the action, or to any proceeding connected with it, was unaffected by all such proceedings.
If the sale to Renneker was fraudulent, that was a fact only to be ascertained, properly, in a proceeding to which Renneker was a party. Thus it appears that down to “‘the date of the issuing of the second execution the Sheriff was guilty of no dereliction of duty that occasioned his liability to execute the order of the 17th of May, as it regards the goods in question.
But it is contended that that order imperatively required the Sheriff to sell the goods in question, and must be regarded as having adjudicated the question of the duty and liability of the Sheriff in view of the situation of the property at the time. It is contended *36that, as that order was not appealed from, the Sheriff was bound to perform its requirements, and that the question of his ability to perform must be regarded as one of the matters adjudged by the order. This is, in effect, the position assumed by the respondent in regard to the force and effect of the order of May 17th.
This order will not bear the construction contended for, but, if that was its true construction, we have authority, and it would be our duty, under the present appeal, to modify it so as to bear a construction more in consonance with the rights of the parties. According to the construction contended for, the order in question would have to be regarded as having adjudicated certain facts and propositions hostilely to both the Sheriff and Renneker. The terms of the order import no such effect. The direction of the order is simply to proceed in execution, and it cannot be extended by construction to the detriment of the rights of a third person not a party to it. We are bound to regard it as not intended to prejudice any right of the Sheriff or of Renneker in respect to the goods levied upon.
But, if the order of May 17th admitted of a different construction, and one that would sustain the respondent’s proposition, it would be proper to modify it under the present appeal.
A proceeding by attachment against the Sheriff for misconduct touching the service or return of process is a special proceeding, in the sense of sub-division 3, Section 2, of the Code of Procedure. It is not necessarily an incident to an action, for it may arise out of an ex parte or summary proceeding.
Although the order appealed from is entitled in the original action, that is not in conformity to the practice at common law, and is not decisive of the character of the proceeding. The parties to the attachment proceeding are not necessarily identical with the parties to the action or other proceeding out of which it has arisen. It is generally a collateral proceeding in aid of a remedy prosecuted by action or otherwise, but it is so far independent that a final order in such proceeding is in the nature of a judgment, and may be appealed from at any time, without regard to the state of proceedings on an action to which it may be collateral.
The effect of appealing from a final order in such proceedings is, in a respect, important to this case, similar to the effect of appealing from a final judgment in an action. Upon such an appeal the -Court may revise any intermediate order involving the merits and necessarily affecting the judgment. — Code, Sec. 11, Sub. 1.
*37The order of May 17th, if entitled to the construction contended for by the respondent, would necessarily be regarded as involving the merits and affecting the judgment, for, on that construction, the case of the Sheriff could stand as substantially adjudicated under that order.
The order of May 17th, not being final in its relation to the proceedings against the Sheriff, could not be appealed from. It is only after the proceeding against the Sheriff had culminated in a final adjudication that this Court could look into the merits of the controversy. Having the whole case before us, we are permitted to look through the whole proceeding to see that errors of law have not been committed.
The order appealed from should be set aside, and the cause remanded for further proceedings in Circuit Court, and the appeal dismissed.
Moses, C. J., and Wright, A. J., concurred.