Rodrigues v. Trevino

Moore, Chief Justice. If this case was properly before the court for hearing on the demurrer when the judgment from which this appeal is presented was rendered, it should be affirmed. If appellants were the owners of the property, or any part of it, which was seized by the attachment in the case of Leon de Leon, they had their election to replevy and try their right to it mider the statute; to sue the sheriff for damages for the trespass committed by his wrongful levy, or sue the purchaser, wrongfully holding under the sheriff’s sale. The property was seized and sold as that of the defendant in the attachment. The purchaser got such title as he had and none other. Hence, a party asserting title adverse to the defendant in attachment has no claim to the money received by the sheriff for" this title. Even if in equity he could assert a claim to the money received by the sheriff, he would have to show a valid excuse for his failure to resort to the plain and adequate remedies afforded to him-at law, and that it was inequitable for the plaintiff in attachment to retain the money paid or adjudged him. This appellants do not attempt to do in •their petition. Nor were they entitled to a judgment against the sher [201] i£Ps sureties unless he was in default in failing to pay them money in his hands. This, it cannot be pretended, was the case. The petition was also defective for want of proper parties. The defendant in the original suit, whose interest would certainly be affected if the prayer of the petition could be granted, should have been a party to the suit. But however clear we are of the opinion that the conclusion of the court, as between appellants and Trevino, is correct, we do not think the record warrants the affirmance of. the judgment. The suit, as brought, is against Trevino and three others. The record does not show that these other parties were cited or made a voluntary appearance. Nor is any notice whatever taken of them in the judgment. The case, as to them, is not determined one way or the other. There is, therefore, no final judgment. And the appeal must, for this reason, be dismissed at the cost of appellants. Dismissed. [Opinion delivered January 11, 1880.]