1. Attachment. It will more conduce to both clearness and brevity to consider the general principles underlying this ,. , ,. . , , . . . case, than to discuss and determine, senatvm, the various errors assigned.
Appellee concedes that an action pending is a bar to a subsequent suit between the same parties, involving substantially the same issue.
The claim here, however, is that the taking of the appeal and the filing of the bond executed by the intervenor gave him a new and distinct right to the possession of the property, which did not exist at the time his rights as intervenor were determined in the proceeding appealed from, and which, therefore, were not involved in that issue, and could not have been determined by the judgment therein rendered. And this is the only tenable ground upon which the plaintiff can base his right to maintain this action.
The filing of the petition of intervention in the principal action, it is clear, did not, of itself, entitle the intervenor to the possession of the property attached. It conferred upon the intervenor only the right to contest the ownership of Byers, and to show that the title to the property was in the intervenor. And- it would be only after a judgment in his favor that he would become entitled to the possession. Judgment having gone against the intervenor, his appeal simply entitled him to a re-trial of the same question in another court. His appeal bond, in so far as it is to be considered an appeal bond merely, entitled him only to a suspension of execution until his rights could be determined in the appellate court. But it did not entitle him to the possession of the property until it should be judicially determined that he owned the same, and was entitled to the possession.
2 _delivery bond. If the bond, then, conferred upon plaintiff any new right as regards tibe possession of the property, it is because it partakes of the nature of, and is to be regarded as a delivery bond as well as an appeal bond.
It seems to us clear that the bond in question, although it *282states that it is intended as a delivery bond, is not one, and cannot be regarded as such, for several reasons.
1. A delivery bond is executed before judgment; this was not executed until after judgment.
2. A delivery bond is to be approved by the sheriff; this was approved by the justice.
3. A delivery bond is conditioned that the property, or its estimated value, shall be delivered to the sheriff to satisfy any judgment obtained within twenty days after the rendition thereof; the bond in question does not contain such conditions.
4. When a delivery bond is executed, the value of the property to be released is to be determined by appraisers summoned by the sheriff; nothing of that bind seems to have been done. See Rev., §§ 3219, 3220. The bond, therefore, not being executed as a delivery bond, can have' no further or greater effect than a mere appeal bond, suspending for the time the right to execution, but not affecting the existing rights of the parties as to the possession of the property.
The court erred, therefore, in instructing the jury, in substance, that if they found that plaintiff appealed from the adjudication against him as intervenor, and gave an appeal bond which the justice approved, and that an execution issued and was levied upon said property, and the constable was proceeding to sell thereunder; and that after the approval of such bond, and before bringing the replevin suit, plaintiff .made a demand of said justice to issue an order to the constable to release said property from execution, and he refused to do so, the plaintiff became the owner of the property, and entitled to the possession, and they should find for plaintiff.
The above facts, if found to exist, would not make plaintiff the owner of the property, nor entitle him to the possession. They would entitle him only to an order, suspending, for the time, the execution.
If the justice refused, upon proper demand, to make such order, he might be compelled by mandamus to do so; and, if necessary to the protection of plaintiff’s rights, perhaps a court *283of equity would restrain the sale under the execution until the intervenor’s rights could be determined on the appeal.
And, for the reasons above set forth, the court erred in refusing to give the following instruction ashed by defendants, to wit:
3 -ABATEMENT. “ If the jury find, from the evidence, that a suit is pending between the parties, George W. Jennings and "W. O. Hoppe, in reference to the property in controversy, x a */ • which is still undetermined between them, and they further find that they are the real parties in interest in the case on trial, and the others are mere nominal parties to the suit, then plaintiff is not entitled to recover in this action, and they should find for defendant. ”
The foregoing discussion indicates our view of the entire case, and leads to the conclusion that the judgment of the circuit court must be
Reversed.