The.opinion of the court was delivered by
Willard, C. J.This action is against the sheriff and his ■sureties on his official bond, the relator claiming that the sheriff had improperly paid over the proceeds of the sale of the lands ■of an execution debtor under junior judgments, when he should have satisfied the judgment of the relator, which was the eldest. The only question that can be considered under the present appeal is, whether there was error in the charge of the Circuit judge in holding that the relator Jones was bound and estopped by an order of the Circuit Court, made against the sheriff on the application of the junior judgment creditors, directing the sheriff to pay over to them the proceeds of the sale in question, when the relator Jones was not a party to the proceeding in which the •order was made, and had no notice of it.
The charge violated the fundamental principle and rule of law that no one shall be bound by a judgment or order who is not a party thereto or in privity with one who is a party. Jones had no opportunity to object to the order in question, and, of course, was not bound by it. The sheriff had the means in his power of protecting himself by causing Jones to be made a party to such *285proceeding, and, failing to do so, he cannot throw the consequences on the relator.
There must be a new trial.
McIver and McGowan, A. J.’s, concurred.