Opinion
Argued April 8, 1872
Decided November 12, 1872
Henry Whittaker and John H. Reynolds for the appellants. Lucien Birdseye for the respondent.
Section 237 of the Code authorizes an action by the sheriff to collect any notes or other evidences of debt, and the debts that may have been seized or attached under a warrant of attachment. It follows that the sheriff could have had an action against Ripley Cameron for the subscriptions to the capital stock of the Glenville Woolen Company. Actions having been brought by the company before the service of the attachments, it was his right to assume the prosecution of those actions and carry on the same, either in his own name or the name of the original plaintiff. By section 238, these actions could be prosecuted by the plaintiffs in the attachment proceedings upon giving the sheriff a bond, conditioned as prescribed by that section. This was done by Isham and others, excluding Cousinery Craig, who were attaching creditors. But this action of Isham and others, whether with or without the act and assent of Cousinery Craig did not conclude them, or operate as a bar to their claim as attaching creditors. Until the debts were collected and appropriated to the payment of the attaching creditors in the order of their priority or as they should claim and were entitled, the debts were still held under the attachments for the benefit of whosoever should prove to be entitled. The debts were in the custody of the law, impounded to answer the claims of the creditors. The rights of the respective creditors and claimants depended upon the priority of the service of their respective attachments, and upon disputed questions of fact which could not be deter mined in any of the pending actions. The right of Cousinery Craig to bring an action to assert their right to the benefit of the pending action and the debts which had been attached, can hardly be doubted. Isham and others, were, by the prosecution of the actions for the recovery of the debts, asserting and exercising a claim adverse to and in exclusion of Cousinery Craig, and the right of the sheriff to interfere with the acts of Isham and others, who were proceeding pursuant to section 238 of the Code, was at least doubtful. But he was in the nature of a stakeholder, and responsible to the party, legally entitled, for whatever should be collected in the pending actions. He was a proper party to bring this action against all the adverse claimants of the fund; and had he in his own right and for his own protection brought the action as an action in the nature of a bill of interpleader, Cousinery Craig would have been necessary parties. But the latter parties brought the action, assuming to do so under the provisions of section 238 of the Code, and it was really their action, and they would have been bound by a judgment adverse to their claim. But there is no objection that Cousinery Craig were necessary parties, and hence such objection, even if it might have been taken, was waived, as was also another objection now taken, that the sheriff had not legal capacity to sue. (Code, section 144.) The merits of the claims of the several litigants were put at issue and fairly tried, and upon conflict and doubtful evidence the court below has decided the questions of fact adversely to the defendants, and has adjudged that the attachment of Cousinery Craig alone was properly served, and that they alone had acquired a lien upon the debts. These parties could not be and were not estopped from asserting their claim or bringing their action by the acts and dealings of the sheriff and the other claimants. If the sheriff was negligent in the performance of his duty and omitted to serve the other attachments, or made a false return, the remedy is against him and not against Cousinery Craig, or by subverting their legal rights. The judgment upon the merits should be affirmed.
Whether O'Brien should have been substituted as the plaintiff upon the decease of Orser may be doubtful, but it is not a very material question. Cousinery Craig were the parties in interest in the Orser action, and also in the action as continued in the name of O'Brien, and are, by the judgment upon the merits, entitled to the benefits of the judgment. They might, under the notice of motion, have been made the plaintiffs in form upon the death of Orser, and, perhaps, that would have been the better course. But O'Brien, as the successor of Orser, was also a proper party as the official successor of Orser and trustee for all concerned.
The judgment of the court below only gives to Cousinery Craig the amounts recovered for the debts and interest against Ripley Cameron. The costs recovered in these actions belong to the attorneys or the parties prosecuting the action. Cousinery Craig are not entitled to the costs included in the judgments against Ripley Cameron.
The judgment thus interpreted is affirmed.
All concur.
Judgment affirmed.