Taylor v. Elliott

On petition eor a rehearing.

Downey, J.

A petition for a rehearing has been filed in this case, in which the position is reasserted, and ably argued, that the judgment of the court quashing the affidavit of Stout and another so completely terminated the attachment proceedings that the judgment in favor of Taylor, so far as it relates to the attached property, was invalid.

Counsel for the appellant has been again hear<$* in an elaborate brief, in answer to the petition, insisting,

*380. We think when Taylor had thus become a pai’ty to the action, that he acquired an interest in or lien upon the attached property, that could not be lost by the quashing of the original attachment. When property has been attached, and an undertaking given for its delivery to be sold on any execution issued, the undertaking enures to the benefit of any creditor filing his claim under the attachment, as well as for the benefit of the original attaching creditor. As Taylor had filed his complaints, affidavits and undertakings before the affidavit of Stout and another was adjudged bad, and the attachment quashed, he had thus secured to himself a lien upon the property attached, and a right to demand its delivery to the sheriff to be sold on his judgment.

The quashing of the attachment as to the claim of Stout and another had no effect upon the lien of Taylor upon the attached property or his right to resort to the undertaking if the property was not delivered according to its terms. It was not necessary that Taylor should sue out a writ of attachment upon his affidavit, in order to acquire a right to resort to the property attached.

Sections 190, 191 and 192 of the act read as follows:

“If judgment in the action be rendered for the plaintiff, or one or more of several plaintiffs, and sufficient proof be made of the goods, chattels, rights, credits, moneys and effects in the possession of the garnishee, the court shall also, give judgment in favor of the plaintiff or creditors against the garnishee, or the property of the defendant, or both, as the case may require, which may be enforced by execution.”'
“ After judgment for the plaintiff, or one or more of several plaintiffs, property attached and remaining unsold may be sold, on execution, as in other cases.”