The Evansville journal. [volume] (Evansville, Ind.) 1866-1870, 1868-04-30

brUfd RGsher 81 NJ, rs. James 6Ttt-
pin @ oL-Appeal from the Wander
bUygb Commoa Pleas Court.
Judgment pronounced by Elliott, j.
The appellants sued Gilpin in the
Common Pleas on an account. Pro
cess was duly issued and served on
Gilpin.
At the time Of the commencement
of the action, the plaintiffs fled their
affidavit aud bond, and procured two
writs of attachment to be issued, one
to the Sheriff of Vanderburgh County,
which was retained, nOlla bona; the
other was directed to the Sheriff Of
Warrick, who byvirtue thereof seized
and attached a coal barge as the
property Of Gilpin, and caused an in
ventory and appraisement thereof to
be made, as required By the statute.
On the 14th of May, 1866, the day on
which the coal barge was attached by
the Sheriff, William Love executed
and delivered to the Sheriff a
bond in the penal sum Of three
hundred and fifty dollars, pay
able to the plaintiffs, which
recites the issuing Of the order of at
tachment, the seizure Of the coal
barge hereunder, by the Sheriff, as
the property of GIlPin, and the re-
delivery thereof to Gilpin on the eX-
ecution Of the bond, which is con-
ditioned that the coal barge should
IS be forthcoming to answer the judg-
ment Of the Court In the said action,
or in default thereof that the obligOr
would pay the plaintiffs said sum Of
three hundred and fifty dollars.
After stating the proceedings IN the
Court below, Judge Elliott gave the
following decision:
The first error assigned Is upon the
ruling of the Court IN admitting Benz
nett and Love to appear as defend
ants In the attachment proceedings.
Such proceedings were. unknown to
the common law. They are author
lied alone by statute, and hence we
can only look to that source IN deter
mining what proceedings may be had
or who may be made parties thereto.
Looking to the provision of orr
statute on the subject, we find nothing
~ 4AAnUAAGC AAG NA0AAA0AN ~ AUHCAAF
attached, In a suit against another
party, to become a defendant IN the
attachment, but on the contrary, it is
provided by section 169 of the code,
that q" Whenever any person., other
than the defendant. shall claim any
property attached, the right of prop
erty may be tried as in cases of prop
erty taken In execution, aud the claim
ant having notice Of the attachment,
shall be bound to prosecute his claim
as In such cases, or be barred Of his
right.
This provision evidently contem-
plates an original suit or proceeding
instituted by the claimants TO try the
right Of property. But the appellees'
counsel insist that the remedy provid-
ed by the statute for the claimant of
property, attached by virtue Of pro
cess against another person, is appli-
cable only in cases where the process
is issued by a Justice Of the Peace,
and refers to the act on that subject,
&c. and III. 632. But section 12S.
of the code q G.. and H. 127 under
the title of claim and delivery Of per-
sOnal property provides that, when
any personal goods are wrOngtully
taken, or unlaWfully detained from
the owner or person claiming the
possession thereof, or t0heR taken on
execution or attachment, are claimed
by any person other than the defend
ant, the owner or claimant may bring
action for the possession thereof. But
It is argued that this statute cOnfers
no new right, nor provides a new rem
edy. Be it so, and still the argument
proves nothing. The remedy provid- /
ed, whether new or old, is an ample
property in such cases, and is certainly
not inconsistent with that cOntem-
plated by section 1859.
1t is also claimed that Bennett and
Love were properly admitted as de-
PENDANTS, under section Is of the
code, which provides that ANY
person may be made a defendant, who
has or claims an interest IN the con-
trOversy, adverse to the plaintiff, or
who Is a necessary party to complete
determination or settlement of the
question involved. This section is
found In connection with others in
that part of the code, declaring who
are proper or necessary parties to an
action, both plaintiffs aud defendants,
and, IL effect, adopts the rule of the
ehancery practice. By the words
interest In the controversy as used
10 that section, is meant an Interest in
the subject matter of the suit or cause
Of action stated in the complaint An
attachment under the code is NOT n
original suit, but is only a proceeding
auxiliary to a pending suit.
The language of the ~st8fnta Il.