ON PETITION FOR A REHEARING.
Buskirk, JA very earnest and elaborate petition for a rehearing has been filed. The principal réason assigned for a rehearing is, that the court erred in holding that Ryan filed under the attachmentproceedings instituted by Burkam against Burkam and Dasher, and that he had the light to prosecute his action under such proceeding. In the original opinion it was stated, that, upon filing the complaint of Ryan, the clerk issued new writs in attachment and garnishment, but that no new summons was issued against the defendants in the original action. It is insisted that the court was mistaken in stating that no summons was issued, and it is claimed that it appears from the record a new summons was issued and served upon such defendants. Such fact may be shown by the files or records in the court below, but from a very careful and repeated examination of the transcript, we have been unable to find any such statement, or any statement from which such fact might be inferred.
It is also insisted that the ruling in this case is in conflict *522with the case of Sturgis v. Rogers, 26 Ind. 1. In .that'case the question arose whether certain parties had commenced independent actions and proceedings in attachment, or had become parties to the original action and attachment proceedings. The court, in the statement of the facts of the case, say: “On the 19th and 20th of December, the other plaintiffs filed complaints and claims ‘ under said attachment suit,’ as is stated by the clerk in making up the transcript, but it does not appear by the record that they or any of them became or applied to become parties to the original action commenced by Rogers. They filed affidavits and undertakings, alleging in the former the non-residcnce of Ellis and Sturgis, and their complaints are as usual in independent suits.” The court, after stating the rendition of the judgment in the orignal action, say :
“ The other creditors, plaintiffs here, took their separate judgments against Sturgis and Ellis by default at the same term, on the 23d of January, 1856.”
The court, on page 9, say: “To determine whether any of the present plaintiffs but Rogers can maintain a suit upon the appeal bond, it is important to enquire whether they became parties to the attachment suit commenced by Rogers. This must be ascertained exclusively by an inspection of the record. It can appear in no other way. Those persons might have become parties to that suit so as to share with Rogers in the judgment against the garnishee (2 G. & H. sec. 186, p. 147), or each of them might have chosen to commence an independent suit. Nothing upon the subject can be legally inferred from the fact that they filed their complaints and took their judgments at the same term at which the suit by Rogers was pending and determined, for that they might lawfully do without becoming parties to his suit. ’Nor are we aided by the statement of the clerk made in the transcript, after the record in the Rogers case, that ‘the following cases are filed as claims under said attachment,’ followed by transcripts of the records of those other cases. The fact as to who have become parties to a *523suit in a court of record cannot rest merely in the memory of the clerk. The record itself must disclose it. The judgment against the garnishee, though in favor of Rogers alone, but containing an order for the payment out of the amount thereof of the several sums 'that are due to the several plaintiffs in the proceedings,’ is the only indication in the entire record that Rogers was not the sole party plaintiff in that suit. But this alone is obviously insufficient, for it fails to show who those other parties were. And as the whole transcript is made part of the answer, and it discloses no party plaintiff but Rogers, there is no method of avoiding the conclusion that Rogers was legally the only party plaintiff to the attachment suit against Sturgis and Ellis, and the only party before us, therefore, having an interest in the judgment against the garnishee in that suit.”
We have made an extended quotation from the case mainly relied upon by counsel in their brief for a rehearing, for the purpose of showing fully the grounds upon which it was based, and that it is clearly distinguishable from the one under examination. In that case, the only evidence of a filing under the original attachment proceedings was the recital by the clerk, and that portion of the judgment which provided for the payment of the several sums due to the several plaintiffs in the proceedings. The entry made by clerk was a nullity, and could not be considered by the court for any purpose. Kesler v. Myers, 41 Ind. 543. The judgment failed to show who the other parties were. There was, then, no legal evidence showing that the plaintiffs in that action, other than Rogers, had become parties to the original attachment proceedings. The court say that the question of whether such persons had become parties to the original action must be determined exclusively by the record. This we concede is right. The court, however, in their history of the case say, that it does not appear by the record that they or any of them became or applied to become parties to the original action commenced by Rogers.
Let us apply the principles decided in the above case to *524the one in judgment. The real question in dispute is, whether Ryan commenced an independent action or became a party to the original action. In what manner does a creditor become a party to an original attachment proceeding? The solution of the question depends solely upon a construction of our statute; for we are not aided by adjudications in other states, for the plain and obvious reason that no other state has a statute by which creditors can file under, and become parties to, an original attachment proceeding. See the abstract of the laws of the several states, in reference to attachment proceeding in the appendix to Drake on Attachments.
Sec. 186 provides, that “any creditor of the defendant, upon filing his affidavit and written undertaking, as herein-before required of the attaching creditor, may, at any time before the final adjustment of the suit, become a party to the action, file his complaint, and prove his claim or demand against the defendant,” etc.
It was said in Schmidt v. Colley, 29 Ind. 120, by the same learned judge that delivered the opinion of the court in Sturgis v. Rogers, 26 Ind. 1, that “before the final adjustment of the original suit, a complaint, affidavit and undertaking may be filed, and then the creditor who has performed these requirements may become a party and prove his claim. This is all that the statute, in terms, requires,” etc.
Considering the two opinions together, the plain and obvious meaning is, that when the record shows that a creditor has filed a complaint, affidavit, and undertaking, he has become a party to the original action, whenever there is any thing in the record which shows that the creditor intended to file under the original proceeding, and not to commence an independent action. In the case in judgment, Ryan, filed his complaint, affidavit, and undertaking. In the caption of the complaint there is a reference to the original action, and in the prayer he asks to be made a party and be permitted to prosecute his claim under said action. The complaint is a part of the record, and, therefore, conforms to the require*525ment laid down in Sturgis v. Rogers, supra. Besides, it is said in the case last cited, that the whole transcript was before the court, and disclosed no party plaintiff but Rogers, while in the present case there is in the record a bill of exceptions, which contains an entire transcript of the attachment proceedings, and the original and subsequent proceedings are so dovetailed together that we could not separate and disconnect them, without mutilating the record. It is true, that counsel in their petition say that the bill of exceptions is not correct, and was not seen by them before it was signed. It is known to the learned counsel who make the suggestion, that a bill of exceptions, when properly signed and in the record, imports absolute verity and is conclusively binding upon this court.
Finally, it is urged that the court below had no jurisdiction of the action or the parties, for the reason that the justice of the peace, before whom the action was commenced, had no power to certify the case to the circuit court, for the reason that the act of March 4th, 1859 (2 G. & H. 148), does not authorize a plaintiff who has commenced an attachment proceeding before a justice, upon a claim within his jurisdiction, to afterward file a claim for a sum beyond the jurisdiction of the justice, but that such statute was intended to authorize some creditor, other than the plaintiff to file his claim thereunder.
We regret that we are deprived of the power of deciding the interesting' question presented. There was no question raised in the court below, or in this court, involving the jurisdiction. The original plaintiff commenced his action on a claim within the jurisdiction of the justice. Subsequently he filed a claim beyond the jurisdiction of the justice, and the cause was certified to the circuit court, in which court, the defendants and garnishee appeared and raised no objection to the jurisdiction of the court over the subject-matter of the action or of the parties.
Subsequently, the case was compromised, and the money secured by the garnishment was divided between the parties. *526Afterward, the defendants and garnishee appeared to the action of Ryan, without raising any question affecting the jurisdiction of the court. The case was appealed to this court, but there is no assignment of error calling in question the jurisdiction of the court below. Under the settled rules of practice of this, and we believe all other appellate courts, the question cannot be raised for the first time upon a petition for a rehearing.
J. E. McDonold, J. M. Btitler, and E. M. McDonald, for appellant. C. H. Burchenal, J. P. Siddall, and G. A. Johnson, for appellees.We are entirely satisfied with the original opinion and judgment pronounced in this case. The petition is overruled.