#### Loomis *v.*Building Association.

L. recovered a judgment in the common pleas court against R. for $247.48, in an action for money only. R. obtained a second trial under tbe statute. R. then gave a mortgage to a building association. Afterward, upon second trial, L. recovered a judgment against R. for $251.80, damages, and $185.98, costs, and levied execution upon the mortgaged premises. In an action by the building association to foreclose the mortgage, marshall liens, and distribute proceeds:

*Held:*1. That the lien of L., to the extent of the original judgment, with interest from the first day of the term at which it was rendered, was the first in order of priority.

2. That the mortgage was’second in order of priority.

3. That the lien of the second judgment, to the-extent that it exceeded in amount the first judgment with interest, was the last in order of priority.

Error to the District Court of Scioto County.

At the October term of the court of common pleas of Scioto county, beginning October 3, 1870, Caroline Loomis, the plaintiff in error, obtained a judgment against Eliza Redinger, one of the defendants below, for the sum of $200 damages and $47.48 costs of suit, in an action then pending in said court, wherein the plaintiff in error was plaintiff and the above named Eliza Redinger was defendant. Thereupon the defendant in that action, Mrs. Redinger, gave notice of her demand for a second trial, which was granted, bond given and the case *393continued. At tlie time said judgment was rendered against Mrs. Redinger she wí\s the owner of certain real estate in said county, and which is described in the petition of the Second German Building Association, plaintiff in the court below and defendant in error in this court. On May 10, 1872, a mortgage was given by Mrs. Redinger to the Second German Building Association, and which was the same day filed and recorded.

The case of *Loomis*v. *Redinger*was continued from time to time until the June term, 1874, commencing June 1,1874. It was tried at that term and a judgment was rendered in favor of Mi’s. Loomis for the sum of $251.80, and 135.98, costs accruing since the first trial, and including the costs of the second trial. Then executions were issued for the judgment and the costs at the following named dates, to wit: September 4, 1874, and July 14, 1875, and were levied on the premises described in the petition of the Second German Building Association, then the property of Mrs. Redinger. These increased costs, as shown by the agreed statement of facts, amounted to the sum of $110.30, and were the costs of issuing the executions, levying on the premises, advertising them for sale, &c. On January 12,1876, Eliza Redinger ceased paying her dues to the Building Association, and it brought suit to foreclose its mortgage on the premises, and made the plaintiff in error a defendant to that action.

Mrs. Loomis filed her answer and cross-petition, setting forth the amount of her claim, her lien, judgment, interest and costs, and asking that it be adjudged to be prior to that of the building association. The premises were sold on April 14, 1877, on an order of sale issued in favor of the building association, and on the order of distribution the common pleas held that Mrs. Loomis had a lien on the premises prior to that of the building association for the judgment of $251.80, being the amount rendered on the second trial, the costs of the first trial, the costs of the second trial and the increased costs.

The building association thereupon appealed the case to the district court, and the same was heard at the April term, 1878, on the agreed statement of facts and the pleadings in the case The district court held ;

*394That Mrs. Loomis had a lien on the premises prior to that of the building association, for the sum of $200, and $4U48 costs, being the amount of the judgment and costs of the first trial, and that the interest on the $200 and the costs accruing between the first and second trials and the increased costs for issuing execution, &c., on the judgment, also the costs of the second trial, were *not*prior to the mortgage lien of the building association, for the reason that the mortgage was filed prior to the time the second trial took place and the increased costs were made. To x-eview this judgment, the present proceeding in error was instituted.

N. *W. Evans*and *Duncan*Livingstone, for plaintiff in error.

*H. W. Farnham,*for defendant in error.

Longworth, J.

The district court was cleax-ly right in holding that the costs made between the first and second trials, and the increased costs for issuing and levying execution and advertising, were a lien upon the lands of the judgment debtoi’, subsequent in order of pxdox’ity to the mortgage lien of the building association. As to the costs made betweeix the fix-st and second trials they were not adjudged against either party until the rendition of the second judgment, of which they formed a component part. As to the costs accruing after the second judgment they wex*e wholly unconnected with the former judgment and wex’e incurred upon final process.

A judgment lien is a creature of the statute, and does not exist except by its authority. By the provisions of the Code, such lien attaches upon the debtor’s lands and tenements on the first day of the term at which such judgment is rendered; in no case does it ante-date the term. A pending action may, it is tnxe, affect the title to land from the time of its commencement ; but this is wholly disconnected with the subject of which we are speaking; such cases are in the nature of proceedings *in rem*and directly affect the defendant’s title to or interest in the land. With no propriety can such pending action, *395or the judgment rendered therein, be called *a Hen*upon the land in dispute.

The judgment of Mrs. Loomis was for money only, and could not affect the land otherwise than in being a charge upon it as provided by statute.

The statute concerning second trials (2 S. & C. 1160) declares : “ In all cases where the party against whom a judgment is,rendered obtains a second trial under the act to which this is amendatory and supplementary, the lien of the opposite party so obtaining such second trial, created by said judgment, shall not be by the obtaining of such second trial removed or vacated, but the real estate of said party so obtaining such second trial, shall be bound in the same manner as if said second trial had not been demanded, until the final determination of the case.”

It cannot be claimed that the lien of the first judgment is preserved only “until the final determination of the ease,” and that it then becomes merged in the lien of the final judgment, since, inasmuch as it could not be asserted until the final determination of the case, if such final determination *removed the*Hen, it would be an unavailable and valueless thing, and the statute reserving it an absurdity.

On the other hand it is equally unreasonable to assert that the lien of the second judgment, when rendered, relates back to the term of the first judgment. The statute does not so provide in terms; nor would it seem reasonable to suppose that the legislature intended to give to an action for the recovery of money only, when a second trial has been obtained, the effect of a *Hs pendens*binding the lands of the defendant to answer *any*judgment which may be rendered in the future; an effect which no other action for the recovery of money has.

The statute regulating the lien of a judgment vacated by an appeal to the district court, is worded substantially like that under discussion, and, under it, this court has held that the lien of a judgment so vacated has precedence of a lien attaching during the pendency of the suit in the district court. *Moore*v. *Rittenhouse,*15 Ohio S. 310.

If upon the second trial tire defendant recovers judgment, or if the plaintiff recovers a judgment less in amount than *396that formerly obtained, this will operate as a satisfaction, complete *os pro tanto,*but it cannot be said that it affects the lien as such.

*We*are, therefore, clearly of opinion that the district court was right in deciding that the lien of the first judgment had precedence of the mortgage. We are equally clear, however, that the court was wrong in holding that the interest on the judgment was postponed to the mortgage lien.

The right of the judgment creditor to interest is derived from the judgment itself. It is part and parcel of it, as much as the principal sum therein adjudged to be due him, and the lien of the judgment covers both.

Freeman in his work on Ju.-tgments, says :—“ The lien of the judgment includes all amounts *tor*which execution may properly issue. In the absence ot anj statutory provision, interest could only be recovered by an action on the judgment, and was therefore no lien until it merged into the second judgment. But in all cases where the statute has provided for the collection of interest by execution, it is as much a lien as the principal recovered.”' Freeman on Judgments, marg. p. 341.

This we take to be a correct statement of the law.

We think that the judgment of the district court should be so far modified as to allow to plaintiff in error, as the first lien upon the land in dispute, the amount of her first judgment ($200 damages and $47.48 costs), with interest thereon from the first day of the term when rendered. In other respects the decree should be affirmed.

*Judgment accordingly.*