Linder v. Sanders

Blandford, Justice. Schaefer obtained a common law judgment against Milton Fuller, and caused the sum to be levied on certain [58] cotton by the writ of execution issued on the judgment. Linder foreclosed a landlord’s lien for rent against Fuller and caused the sum to be levied on the cotton. Fuller replevied the property levied on, and made his forthcoming bond with Linder as surety thereon. The day of sale having arrived, the property levied on was not forthcoming. The constable brought his action for the use of Schaefer, and recovered judgment against Fuller and Linder, the surety. Linder paid the money due on the judgment to the sheriff and gave him notice that he claimed the same on his lien for rent, which had been foreclosed. Upon a rule brought to distribute the fund, the court awarded the money to Schaefer, and to this ruling Linder excepted and brings the case here for review. The only judgment or lien upon the fund was the judgment in favor of Schaefer. This judgment was against Linder himself; he discharged the same by paying the money to the1' sheriff. If the money should be paid back to Linder, it would leave Schaefer’s judgment against him unpaid, and Schaefer might proceed to raise the money due thereon out of Linder’s property; and (his demonstrates the absurdity of the position maintained by the plaintiff in error. Judgment affirmed.