Hauser v. Andersch

Bond, J. — This action is for the balance due on a ¡note. An attachment was sued out on the grounds, amongothers, that defendant had fraudulently conveyed, 'and was about fraudulently to convey, his property so-as to hinder or delay his creditors. A plea in abatement denying the grounds alleged in the affidavit for attachment was filed, and, upon a trial of the issues thus made, the jury returned a verdict in favor of defendant, from which, after the overruling of his motion for a new trial, plaintiff took his appeal to this court. This appeal must be dismissed. It was evidently taken under a misconception of the law in force in attachment suits. By the act of February 25, 1891, (Session Acts, p .45), it is provided that, upon the trial [486] of the issue made by a plea in abatement, if the finding be for defendant and a new trial is refused, ‘ ‘the court shall thereupon render judgment that the attachment be abated at the costs of plaintiff and his sureties, and thereupon the plaintiff may file his bill of exceptions as upon any other matter in the proceedings, and the cause shall proceed to trial upon the merits, and the. filing of his bill of exceptions by plaintiff shall preserve the attachment in full force.” The act further provides for an appeal by either party from the merits, and for the preservation of the attachment lien by bond and supersedeas until the final determination of the case. This act in plain terms postpones the right of both parties to appeal from a finding on the issues on the plea in abatement until after the case shall have been tried on its merits. At such time the plaintiff may appeal either from the finding on the plea in abatement^ or on the merits, or from both, as he may elect. The' defendant may then appeal, if at all, on the whole ease; but neither party can, under the present act, ¿appeal before atrial on the merits. The learned counsel evidently overlooked the fact of the amendment of section 562 of the Revised Statutes of 1889, by the act of February 25, 1891, supra. Under the former act, the plaintiff might have appealed directly from the verdict and judgment on the plea in abatement without proceeding further in the lower court. This, as we have seen, can be no longer done under the existing statute. Since the appeal herein was taken before the trial of this cause on the merits, it is dismissed. All concur.