Appeal of Adamson

Mr. Justice Stekijett delivered the opinion of the court October 19th, 1885. As separate and • independent claimants on the fund raised by the sheriff’s sale of Robert Dougherty’s personal property, appellants had no right to appeal jointly from the decree of distribution. Having no interest in common, they had no more right to prosecute an appeal jointly than they would have had to maintain a joint action at law against their debtor: White’s Appeal, 15 W. N. C., 313. The appellees, therefore, might have required them to elect which of the two would suffer a nonpros. ; but, instead of doing so, they moved to quash the appeal, as to Jesse Hunnell & Co., for the reason that they filed no exceptions either before the. Auditor or in the court below. The fact upon which the motion is based being conceded, it is clear the firm has no standing in this court, and hence their appeal must be quashed. On behalf of the remaining appellant, W. S. Adamson, the sole contention is, that the notice served on the sheriff by the labor claimants, to whom part of the fund was awarded, is defective in not setting forth that the property alleged to be subject to the lien is embraced in the sheriff’s levy. The law under which appellees claim is a species of class legislation, and it is not unreasonable to require that all the facts necessary to bring their respective claims within the provisions of the Act should be stated in the notices they are required to serve on the sheriff. This is not only reasonable, but essentially ■ necessary in order that the officer, as well as [463] execution creditors and others interested, may-act understanding^. The Act, it is true, does not prescribe any particular form of notice, but in Allison v. Johnson, et al., 11 Norris, 314 and Pardee’s Appeal, 4 Out., 408, we said it should be sufficiently full and clear to show the officer and others interested that the labor was performed within the time limited by the Act, in a business defined therein, the sum duejj and that the property subject to tlie preferred lien is embraced in the levy. These four ingredients are necessary to bring a claim within tlie protection of the Statute, and hence they must appear in some form, in the notice served on the sheriff. As to tlie first three requisites, tlie notices in this case are sufficient; but. as to the fourth, they are fatally defective. There is nothing in either of tlie four notices that can be fairly construed as even an informal averment that the property, claimed to be subject to the lien, is embraced in the levy. For that reason alone appellees are not entitled to participate in the distribution. We have not been furnished with the schedule of distribution, or with the facts necessary to enable us to enter the. proper decree, and must therefore remit the record with instructions to the court below to correct the decree of distribution in accordance with the views above expressed. Appeal, as to Jesse Hunuell & Co., quashed; and as to W. S. Adamson, the remaining appellant, the decree is reversed at the costs of the appellees, and the record is remitted to the court below with instructions to distribute the fund in controversy in accordance with the foregoing opinion.