Chaffee v. Malarkee

The opinion of the court was delivered by Isham, J. The motion to dismiss in this case was properly [246] overruled. The statute is express in its provisions, that “ when- “ ever a subsequent attaching creditor of real, or personal proper- “ ty, shall wish to contest the validity of the debt or claim on “ which a previous attachment is founded, the court in their dis- “ cretion, may permit such creditor to appear and defend the suit.” To deprive a creditor who has thus appeared, of a right of appeal, would defeat the general object for which the act was passed. As the legislature imposed no restriction of that character, it is reasonable to presume, that they'intended to give the creditor the enjoyment of those means and opp ortunities for the prosecution of his defence, which are given to the defendant. The right of appeal may properly be considered as an incident to the right of appearing and defending suits at law; and when the general right to defend is granted, those incidents follow which are given to the defendant, and which direct the manner in which a defence may be interposed. We think, therefore, that the appeal was properly taken by the subsequent attaching creditors, and that they are so far parties to the suit, that they can pxosecute the same in the appellate court. We think also, that the judgment of the county court must be affirmed, on the exceptions taken to the report of the auditor. The 9th section of the Comp. Stat. 290, directs the auditor in taking the account of the parties on book, to examine and adjust the same to the time of the audit. It is a right also given to the plaintiff by the statute, to have his accouxit so adjusted, and to hold any lien or security he may have obtained by his attachment, for the payment of the balance which he may recover. It is not within the legitimate power of any court to deprive a party of a specific right so expressly secured by statute, or defeat the intention of the legislature, so unequivocally spread on the face of the act. Whenever another creditor makes a subsequent attachment of the same property, it is done subject to this duty imposed on the auditor, and subject to this right given to the plaintiff. The attachment was made with a knowledge of this xdght, and with the understanding that the plaintiff’s account was to be so adjusted and allowed. If the account is just and due, and the subsequent charges were made in the regular coixrse of their business transactions, there is nothing of which the subseqxxent attaching creditor has reason to complain. If thex’e was actual fraud practiced between the plain [247] tiff and defendant, for the purpose of defeating the lien of the subsequent attaching creditors, the rule would probably be otherwise, and the lien of the plaintiff would probably thereby be defeated, as against the last attachment. But no suggestions of that character have been made; and none, hut that the account of the plaintiff is just and due, and which would have accrued, if this attachment had not been made. Under such circumstances, the plaintiff is entitled under the statute to a judgment on the balance of his account, as it stood, at the time of the hearing before the auditor.