Turner v. Norris

Hathaway, J. — Williams was the first, and the plaintiff a subsequent attaching creditor in suits against Hall & al. The defendant was the officer who served the writs and made the .attachments, and into whose hands the executions, which [115] were issued upon the judgments recovered, were seasonably placed for collection. The execution of Williams was satisfied out of the property attached. The plaintiff’s execution was returned unsatisfied in part, by reason of a deficiency of the property attached, which deficiency, the plaintiff alleges, was occasioned by the reason of defendant’s making unlawful and unreasonable charges for his fees and expenses, for the service of the writ of Williams, which fees and expenses were taxed in the bill of costs, recovered by said Williams, and allowed, and included in his judgment. The exceptions present the single question whether or not this action can by law be maintained, and we think it cannot. The law makes abundant provision for the protection of the rights of subsequent attaching creditors. They may “ petition the Court, in which such prior suits are pending, for leave to come in and defend against them in like manner as the party therein sued could or might have done.” 11. S. c. 115, § 113. A suit is pending until final judgment rendered therein. The subsequent .attaching creditor has the same right to resist the recovery of unlawful costs, as of an illegal claim of debt. The charges of an officer for his fees, &c., which are taxed and allowed as in this case, appear by his return upon the writ. The plaintiff had the opportunity and the right to become a party to that suit by availing himself of the provisions of the R. S. c. 115, $ 113, 114, 115 and 116. He did not, it seems, deem it advisable to pursue that course, and the judgment in favor of Williams, so long as it remains unreversed, is conclusive of its own correctness, as far as the plaintiff in this suit is concerned. The exceptions are sustained, and judgment to be entered for the defendant, according to the alternative report of the referee. Shepley, C. J., and Wells and Howard, J. J., concurred.